Urquhart v. Smith & Anthony Co.

Braley, J. Upon the evidence the jury could have found that the plank walk was a part of the permanent ways of the defendant’s manufactory designed for the use of its employees in passing to and from the privy provided for their accommodation, and which was located at the rear of the shop where the plain [260] tiff worked. Coffee v. New York, New Haven, & Hartford Railroad, 155 Mass. 21, 23. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. McMahon v. McHale, 174 Mass. 320. Being thus connected and forming a part of the establishment, whether at common law or under R. L. c. 106, § 71, it became the duty of the defendant- to maintain the walk in suitable condition for the convenience of the plaintiff, and if snow and ice were accumulated in such quantities that upon being trampled and then frozen the surface was rendered uneven and dangerous, and so continued for several days before the accident, there was evidence that by reason of its negligence this duty had not been discharged. Geloneck v. Dean Steam Pump Co. 165 Mass. 202. The principal defence relied upon, however, is that the plaintiff was not in the exercise of due care or assumed the risk. In support of this contention it is urged that the unsafe surface of the walk was obvious, and from the plaintiff’s evidence undoubtedly it appeared that from previous use he was aware not only of the presence of uneven and ridgy snow and ice, but also that the night before a light flurry of snow had fallen which might tend to cause his footing to be still further unstable. But what effect this knowledge of the combination should have had upon the reasonable care required of him could be found to depend .upon the nature pf the defect. Street v. Holyoke, 105 Mass. 82. Moylon v. McDonald Co. 188 Mass. 499, 501. The jury might come to the conclusion that the walk had not been rendered impassable, and that it was possible to pass over it in safety, or that in attempting to pass, although in a general way appreciating the slippery and uneven nature of the surface, the plaintiff had not failed to exercise ordinary care. Mahoney v. Metropolitan Railroad, 104 Mass. 73. Mahoney v. Dore, 155 Mass. 513, 518. A plank walk, not structurally defective, and properly constructed, but which temporarily may be less convenient for travel owing to an accumulation of ice and snow, still may be used by the servant in the course of his employment without negligence necessarily being imputed to him. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155, 157, 158. Rooney v. Sewall & Day Cordage Co. 161 Mass. 153, 159. Bence v. New York, New Haven, & Hartford Railroad, 181 Mass. 221, 226. That another way of communication was available, of [261] which the plaintiff knew, and where he would not have been exposed to a similar possible danger, does not conclusively establish the proposition that he was careless. There may be instances where the danger of using one passageway, that occasionally is used as a means of communication between different points in a railroad yard instead of another which is commonly taken, may be so extreme and manifest, that a servant, who, either in disobedience of any order directing him to take the safer course, or to gain time, chooses the first as a shorter or more convenient route and is injured, may be held, by his willingness to take chances which ordinary prudence would have condemned as careless, to be guilty of such negligence as to preclude recovery. Galvin v. Old Colony Railroad, 162 Mass. 583. But here, as the opportunity afforded the plaintiff was without the distinction that usually one road was considered safer than the other, his choice at most was evidence to be considered only as bearing upon the question of his negligence.. It manifestly could not have been ruled as matter of law that because the plaintiff observed the icy surface, he fully appreciated the probability of being injured and then voluntarily exposed himself to any danger that might be incurred by attempting to use the walk. Thomas v. Western Union Telegraph Co. 100 Mass. 156. Wagner v. Boston Elevated Railway, 188 Mass. 437, 441, and cases cited. Such an issue is for the jury. Mahoney v. Dore, Wagner v. Boston Elevated Railway, ubi supra. Neither in principle, nor substantially upon the evidence, would there seem to be any sound distinction between the present case and Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. The plaintiff in that case was injured by falling on a stairway outside the building where she worked, but which was used by the employees, and had become slippery and unsafe by escaping steam which froze as it fell on the treads. It was held, that whether treated as an assumption of the risk or as a question of due care, the issue of the plaintiff’s negligence was for the jury. The difference between ice formed by the freezing of melted snow and that formed by the freezing of the moisture caused by precipitated steam, where in each instance the ice makes a coating which may render the surface, whether consisting of steps or of a plank walk, unsafe for use by those having occasion to [262] lawfully pass over either, is not apparent. The defect is caused by the same element, and although the circumstances of each case may vary, yet the care required of the servant is only reasonable diligence, and it cannot be said as matter of law, that to use a plank walk is more unsafe than to use stairs, when each has become coated with ice through the negligence of the master. Mahoney v. Dore, ubi supra. In actions for injuries caused by defects in public ways it also has uniformly been held not only that the doctrine of contributory negligence is applicable, but that previous knowledge by the person injured of an open defect, or of a general condition which ultimately proves to be a defect, is not sufficient generally to prevent recovery. Snow v. Provincetown, 120 Mass. 580, 588. Little v. Brockton, 123 Mass. 511. Woods v. Boston, 121 Mass. 337. Norwood v. Somerville, 159 Mass. 105. Torphy v. Fall River, 188 Mass. 310, 314. Campbell v. Boston, 189. Mass. 7, 10, and cases cited. In neither case is the traveller, or the servant, freed from the duty of exercising reasonable care, but even with such knowledge, where the roadbed is unimpaired, and the way is apparently left open for use, how far his reliance upon the presumption that the public authorities or the master had performed the duty of making it reasonably safe should have affected his conduct, when the question of his negligence is raised, results in a question of fact and not of law. Thompson v. Bridgewater, 7 Pick. 188. Lawless v. Connecticut River Railroad, 136 Mass. 1, 3. Moynihan v. Hills Co. 146 Mass. 586, 591, 592. A further defence is interposed that under R. L. c. 106, § 77, if the plaintiff knew of the defect and did not inform the defendant, or some person entrusted by it with general superintendence, he is barred from any remedy for the- injury. This section does not require notice of latent defects of which by reason of their character the servant may be ignorant until thereby injured, nor is the requirement where the defect is known a precedent condition, compliance with which must be shown by the plaintiff, but is a matter of defence, with the burden of proof resting upon the defendant. Murphy v. Marston Coal Co. 183 Mass. 385, 388. Connolly v. Waltham, 156 Mass. 368, 371. If the plaintiff admitted knowledge of the snow and ice, it still would be an issue of fact whether he also should have known before [263] the experience gained by his fall and consequent injury, that the walk was thus made defective. Indeed, even if the defect of itself had not been transitory but of a permanent character, which would exist where the structural condition of the ways, works and machinery or of their adjustment had become so impaired that further use might be attended with obvious danger, yet in all cases it would not follow that an employee must be presumed conclusively to know that the change constituted a defect within the meaning of the statute, although in' some instances such knowledge might be imputed from the common experience of mankind. It is to be assumed that full and accurate instructions were given upon this as well as upon the other issues as no exceptions were taken to the charge to the jury, to whom the case was properly submitted. A majority of the court is of opinion that the order must be, Exceptions overruled. '