113 Mass. 396 | Mass. | 1873
The instructions as given were substantially those considered in Coombs v. New Bedford Cordage Co. 102 Mass. 572, which were given at the second trial of that case. As thea plaintiff there obtained a verdict, the inquiry there was, whether they were sufficiently favorable to the defendant; but, as between the plaintiff and the defendant, we believe that they carefully guard the rights of each.
Though it is a part of the implied contract between master and servant, (where there is only an implied contract,) that the master shall provide suitable instruments for the servant with which to do his work, and a suitable place where, when exercising due care himself, he may perform it with safety, or subject only to such hazards as are necessarily incident to the business, yet it is in the power of the servant to dispense with this obligation. When he assents therefore to occupy the place prepared for him, and incur the dangers to which he will be ex
In the present case, the evidence of the plaintiff was that he went to work in the place pointed out by the defendants. He thus consented to the dangers attending the work, all of which were apparent; and, if he had sufficient knowledge and capacity to comprehend them, he cannot now complain that such place might at moderate expense have been made safer. The defendants were therefore properly entitled to the ruling that they were not bound in law to cover or fence the machinery, and could not be made liable merely for neglect so to do. The only ground upon which they could be held responsible was because they had been guilty of some negligence, thus failing in their duty to the plaintiff. The burden of proving this was upon him. Merely omitting to inclose the machinery could not be considered as such failure, the plaintiff having consented to work in the position in which he was exposed to the machinery in this condition. It was for him, therefore, to show some different or additional reason for holding them liable.
It may frequently happen that the dangers of a particular position for, or mode of doing work, are great, and apparent to persons of capacity and knowledge of the subject, and yet a party from youth, inexperience, ignorance, or general want of capacity may fail to appreciate them. It would be a breach of duty on the part of a master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to enable him to comprehend them, and to do his work safely, with proper care on his own part. It was therefore competent for the plaintiff to show that there had been such a breach of duty on the part of the defendants, and although he had in fact gone to work in the place pointed out, assenting
The instructions given were in accordance with these views, and those requested could not have been given. The ruling requested, “ that if no instruction was given the plaintiff as to the route in going to or from the machine at which he was injured except to do as the other boy before him did, and he did so and was injured, there was negligence on the part of the defendant,” was erroneous, for it might have been that, although thus injured, he was injured by no negligence on the part of the defendants, but by negligence on his own part. The second instruction requested would have created the erroneous impression that, even if the plaintiff had full instructions, it would have been of no avail, if they proceeded from the defendants’ foreman or second hand. The defendants, it is true, cannot escape the responsibility, if there was one upon them, of notifying the plaintiff of the risks of the work by merely delegating it to one of their servants ; but if the duty thus delegated was performed, the plaintiff had all the notice requisite for his safety. The third instruction requested has already been considered. The mere failure of the defendants to guard, their' machinery was not a ground upon which the plaintiff could recover, and the fact that it was guarded in other rooms was immaterial. Exceptions overruled.
