Veginan v. Morse

160 Mass. 143 | Mass. | 1893

Holmes, J.

1. In statutes like that under which two counts of this action were brought, the requirement of notice is held to make a condition precedent to the right to bring an action, not on a nice interpretation of the particular words used, but upon a general view of what the Legislature would be likely to intend. Gay v. Cambridge, 128 Mass. 387. Moyle v. Jenkins, 8 Q. B. D. 116, 118. Keen v. Millwall Dock Co. 8 Q. B. D. 482, 484, 485. Roberts & Wallace, Employers’ Liability, (3d ed.) 310. In this case the writ was made out before the notice was served. The making of the writ is prima facie the commencement of the action. Gardner v. Webber, 17 Pick. 407. Bunker v. Shed, 8 Met. 150, 153. It is true that the notice was left at the defendant’s house on the same day. But the writ was not made out provisionally, as in Seaver v. Lincoln, 21 Pick. 267, and there is no reason, except the presumable intention of the plaintiff to begin his action effectually, why the writ should be considered to have been purchased after the notice was served. The fact is the other way, and such a fiction would not “ most accord with the truth and justice of the case,” within the doctrine of Badger v. Phinney, 15 Mass. 359, 364, and Gardner v. Webber, 17 Pick. 407, 413. The ruling that the action could not be maintained upon the two counts in question was correct.

In face of the express testimony that the plaintiff could not have seen, and did not see, the revolving knives of the planer, and did not know the danger, we cannot assume, as in Toomey v. Donovan, 158 Mass. 232, 237, that he did know it, or ought to have known it, whatever we might say as jurymen. The plaintiff originally was not hired specially to work on machinery, but to work in the mill yard. We cannot say, as matter of law, that by the terms of his employment he took the machine as it was, although it may have been open to the jury to find that he had acquired such knowledge, and that he had been put to work on the machine so frequently that it had become one of the risks which he assumed under his later employment.

2. We assume, for the purposes of the case, that the plaintiff was entitled to go to the jury, and had a right to put in any proper evidence bearing on the question whether the defendant had exercised reasonable care in providing and maintaining the machinery used by him. The questions put for this purpose were questions as to the use of guards upon other specified machines elsewhere, or upon some machines not specified, within the observation of the witness. The question to the defendant, “ Don’t you know that Mr. Baker’s planers . . . have blowers ? ” was not an inquiry into his knowledge at the time of the accident, but was an emphatic form of question, on cross-examination, intended to bring out an admission of the present fact. The most general questions put did not go to the point of establishing that planers usually had guards, but were inquiries whether the witness had seen guards upon planers, and whether the planers he had worked upon had such guards. These questions were excluded.

It has been held to be competent for the purpose mentioned to show what other kinds of machinery or appliances were used elsewhere by the defendant, and might have been used at the place of the accident» Myers v. Hudson Iron Co. 150 Mass. 125, 138. Mo doubt such evidence may be competent to prove the practical possibility of the appliance, if disputed. See Commonwealth v. Leach, 156 Mass. 99, 102, 108. But it raises collateral issues, (Bailey v. New Haven & Northampton Co. 107 Mass. 496, 498,) and much must be left to the discretion of the presiding judge, to determine whether there is sufficient similarity in the case offered to make it instructive, (Hill Manuf. Co. v. Providence & New York Steamship Co. 125 Mass. 292, 298, 308,) and to see that under the guise of showing what is practicable some other establishment is not set up as a standard of the defendant’s duty, (Le Barron v. East Boston Perry Co. 11 Allen, 312, 315, and Wheeler v. Wason Manuf. Co. 135 Mass. 294, 298, 299,) or a mere accumulation of instances, not shown to be all or a majority of the class, made the foundation of an argument as to what is usual. If, to prove the practicability of a guard, the judge had let in the evidence offered as to certain other planers in Worcester and Millbury, we could not have said that he was wrong on the facts before us, but neither can we say that he was wrong in excluding it. So far as appears, the case may have been tried on the assumption by all parties that it was possible, and known by the defendant to be possible, to put on such a bonnet as was described, and it may have been manifest that the evidence was offered for a different purpose, as indeed was admitted, if we are to take the bill of exceptions literally. The evidence was offered “ for the purpose of showing the neglect of the defendant in not having the knives protected under the machine, and that such protection was usual.”

Exceptions overruled.