Mahoney v. Dore

Knowlton, J. The plaintiff fell and was hurt on a flight of stairs, consisting of twelve or thirteen steps leading from the kitchen of the defendant’s boarding-house out of doors to the back yard. The stairway was covered and enclosed except on the side towards the yard, and there was a skylight over a portion of it, in which two or three panes of glass had for a long time been broken, so that rain, snow, and sleet came through and fell upon the stairs below. The evidence tended to show that at the time of the accident the weather was cold, and it was snowing, and that the stairs were slippery from snow and ice upon them. The plaintiff had occasion to use these stairs frequently as a servant of the defendant, and it was the duty of the defendant to keep them safe, so far as the exercise of reasonable care and [518] diligence on her part would accomplish that result. It was a duty of which she could not relieve herself by delegating it to another. If she could properly intrust a part of the work to a mere servant, she, or somebody representing her for whose conduct she would be responsible, must exercise reasonable care and supervision to see that the desired result was attained. In view of the fact that the glass over the stairs had been broken out for a long time, exposing the stairs to an accumulation of snow and ice, we are of opinion that it was a question for the jury whether she was negligent in allowing the stairs to become slippery, and that it cannot be said, as matter of law, that she is relieved from liability even if it was the duty of her servant, the engineer, to clean the stairs, and if his negligence contributed to the plaintiff’s injury. Moynihan v. Hills Co. 146 Mass. 586. There was evidence for the jury on the question whether the plaintiff was in the exercise of due care in trying to go down the stairs. She had occasion to go there, and although it was dark and she knew there was snow and ice on the steps, it was the way provided for her use, she was very familiar with it, she had hold of the rail and was trying to go safely, and it does not appear that she knew the stairs were so slippery that it would be careless to try to pass over them. The fact that she knew there was some danger in trying to go over them does not show, as matter of law, that she was negligent. This part of the case was rightly submitted to the jury. Mahoney v. Metropolitan Railroad, 104 Mass. 73. Looney v. McLean, 129 Mass. 33. Watkins v. Goodall, 138 Mass. 533. Fitzgerald v. Connecticut River Paper Co., ante, 155. It is contended that the defendant is not liable because the plaintiff assumed the risk of injury, and that the doctrine Volenti non fit injuria applies. See Myers v. Hudson Iron Co. 150 Mass. 125; Mellor v. Merchants' Manuf. Co. 150 Mass. 362; Lothrop v. Fitchburg Railroad, 150 Mass. 423; Boyle v. New Torh & New England Railroad, 151 Mass. 102. The cases in which this doctrine can be applied by the court, in ordering a verdict for the defendant on the undisputed facts, are usually those in which the plaintiff’s assumption of the risk grows out of the contract implied in undertaking service in a dangerous business. Except in regard to the danger of injuries from the negligence [519] of fellow servants in certain cases, under the St. of 1887, c. 270j and possibly some other dangers under the same statute, a servant impliedly, agrees to assume the obvious risks of the business in which he engages, and his implied agreement, except as it may be affected by that statute, which we are not now considering, includes not only the risks which are ordinarily incident to that kind of business, but also those which grow out of the peculiar way in which his employer is conducting it, so far as that way and those risks are obvious when he makes his contract. If he agrees to work in a business which he knows is carried on with machinery much more dangerous than that commonly used in that kind of business, he assumes the obvious risks incident to the use of that machinery. By making a contract to serve for pay where such dangers surround him, he exposes himself to the danger voluntarily. But in a much larger class of cases it is a question of fact, when one has been injured by reason of an exposure which he knew involved some risk, whether he voluntarily took the risk of the injury which he received. The question divides itself into two parts: first, whether he understood and appreciated the risk, which is sometimes a question of law and sometimes a question of fact; secondly, if he appreciated it, whether he assumed it voluntarily, or acted under such an exigency, or such an urgent call of duty, or such constraint of any kind, as in reference to the danger deprives his act of its voluntary character. He may reluctantly, so far as the danger is concerned, and under extraneous pressure which amounts almost to compulsion, expose himself to a danger which originates in another’s fault, and under such circumstances it cannot be said that he assumes the risk voluntarily. In a very recent case in England, (Smith v. Baker, [1891] A. C. 325,) it has been decided by the House of Lords that a servant who continues to work where he is exposed to a danger which he understands and appreciates, and which results from his employer’s negligence, and which he did not assume by his implied contract when he entered the service, does not, as matter of law, voluntarily assume it by merely remaining in a place which is rendered unsafe by his master’s fault. We are not aware of any adjudications in this Commonwealth which are necessarily [520] inconsistent with this just and reasonable doctrine, although different opinions have been expressed on this point by eminent judges both here and in England. Most of the cases in this State which relate to a servant’s assumption of a risk refer to risks assumed on entering the service. Leary v. Boston & Albany Railroad, 139 Mass. 580. See Scanlon v. Boston & Albany Railroad, 147 Mass. 484; Fitzgerald v. Connecticut River Paper Co., ante, 155, and cases there cited. The tendency of recent decisions is to hold that, in regard to dangers growing out of the master’s negligence, which are not covered by the implied contract between the master and servant when the service was undertaken, it is a question of fact whether a servant who works on appreciating the risk assumes it voluntarily, or endures it because.he feels constrained to. Fitzgerald v. Connecticut River Paper Co., ubi supra. In the present case no such danger as that which caused the plaintiff’s injury was obvious when she entered the defendant’s service, and she cannot be held to have impliedly contracted in reference to it, or to have then assumed it. In reference to the effect of what occurred afterwards, we are of opinion that it was a question of fact whether, when she started down the stairs, she understood and appreciated the danger of going, and, if she understood it, whether she assumed it voluntarily, or because she felt obliged to continue in the service and make the best of the situation in which she found herself. Of course, if she had not exercised such care as ordinary persons are accustomed to exercise under like circumstances, she could not recover, even if she did not assume the risk voluntarily. We are of opinion that on all the questions at issue the case was rightly submitted to the jury. Exceptions overruled.