322 Mass. 7 | Mass. | 1947
This action of tort was brought to recover compensation for personal injuries sustained by the original plaintiff, Jennie Fuller, in the circumstances recited below. At the close of the evidence the defendant made certain requests for rulings, to the effect that upon the evidence, upon the law, and upon the law and the evidence the plaintiff was not entitled to recover, which were denied by the judge sitting without a jury, subject to the defendant’s exceptions. The judge found for the plaintiff. Thereafter she died and the administrator of her estate was permitted to intervene and prosecute the action.
. The evidence most favorable to the plaintiff’s intestate, hereinafter referred to as the plaintiff, would warrant the finding of the following facts: About six months prior to January 1, 1943, the defendant in anticipation of confinement engaged the plaintiff to take care of her. Between January 26, 1943, and February 1, 1943, the plaintiff met the defendant at a hospital and was driven to the latter’s home on Lovell Street in Worcester and started to work for her as a practical nurse. The plaintiff’s duties were in general to take full charge of the baby and to give the defendant - such care as she required. She did some housework such as doing the dishes, some of the “baby’s washings,” and some picking up around the nursery. She worked at the
There was no error in the denial of the requests for rulings above referred to. The defence relied upon by the defendant, that the plaintiff had contractually assumed the risk of the condition which caused her injury, is open.
The questions remain to be considered whether the de-fence of contributory negligence o.n the part of the plaintiff is open to the defendant and, if so, whether the evidence, as contended by the defendant, required a finding of contributory negligence on the part of the plaintiff. The defendant takes the position that the plaintiff was a domestic servant, and hence that the provision of G. L. (Ter. Ed.) c. 152, § 66, that it shall not be a defence that the employee
Voluntary assumption of risk is an affirmative defence which must be pleaded. Leary v. William G. Webber Co. 210 Mass. 68, 73. Manning v. Prouty, 260 Mass. 399, 402. Sylvain v. Boston & Maine Railroad, 280 Mass. 503, 505.
Exceptions overruled.
See now G. L. (Ter. Ed) c. 152, §§ 66, 67, as appearing in St. 1943, c. 529, §§ 9A, 10, enacted after the date of the accident in the present case and effective November 15, 1943.
This provision has not been changed by St. 1943, c. 529, §§ 9A, 10.