161 Mass. 378 | Mass. | 1894
The exceptions recite as follows: “ He [the plaintiff] also testified that it was part of his duty to take the cover off and put it on, and that he did so very frequently, almost every day and sometimes several times a day, for eight months just previous to the accident; that before this period of eight months he had worked on the Argus at different times ; that both the cover and the grating had been in exactly the same condition, except the ordinary wear and tear, all the time; and that he was fully aware of their condition. There was no evidence that the plaintiff had ever complained to any one of the condition of the lazarette’s cover or grating. He testified further, that in the course of his duty he was obliged to look out for the stern line more than once a day.” “The plaintiff also stated that he knew, prior to the accident, that the iron cover, on account of accumulated rust and wear, would slip, but never knew it to tip before.”
It is not absolutely certain whether the plaintiff stepped upon the grating or the cover, but it is probable that he stepped upon the grating, which tipped and let one of his feet into the hole. According to his own testimony, the plaintiff knew as well as anybody, perhaps better than anybody else, the defects, if there were any, in the grating and the cover, and the danger of stepping upon the grating or the cover when either was placed over the hole. The plaintiff was required to look after the stern line, and it was' necessary for him to do this in a hurry ; but he was permitted to do it in his own way, and it was daylight at the time. Upon the testimony of the plaintiff himself, we think it appears that he was wanting in due care. See Lothrop v. Fitchburg Railroad, 150 Mass. 423.
Exceptions overruled.
