O'Toole v. Pruyn

Rugg, J. The principles of law by which this case is governed are well settled. The employer is bound to furnish to the employee reasonably safe tools and appliances, with which to do the work required of him. The employee on his part is bound to use reasonable care for his own safety with reference to the tools and appliances so furnished. This duty rests on him equally, whether the employer has done his duty or has failed in its performance. The standard of duty for the employee is the same, whether the tools and appliances with which he is provided are in good or in bad condition. He must at all times be in the exercise of due care. If, however, when furnished with an improper tool or unsafe appliance, the workman fully com [129] prebends its defects and imperfections, and realizes the nature and extent of danger, which will arise from their use, and voluntarily, without compulsion or exigency,intelligently and intentionally proceeds to use them, then he must abide the consequences. If he has voluntarily assumed the risk, he is precluded from recovery, either on the ground that be has failed to exercise due care or as being within the maxim, Volenti non fit injuria. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. Wagner v. Boston Elevated Railway, 188 Mass. 437. Urquhart v. Smith Anthony Co. 192 Mass. 257. Butler v. Frazee, 211 U. S. 459. Testing the plaintiff’s conduct by these well settled principles, it does not appear that he is barred of the right to maintain his action. The appliance with which he wa's furnished was a wheelbarrow. This is an implement of widespread use. Its operation is a matter of common knowledge. But the details of its construction and its state of repair are not so instantly and easily obvious according to universal experience as to charge everybody who uses one with such detailed knowledge. There was some evidence, which, if believed, tended to show that the wheelbarrow, the tipping of which caused the plaintiff’s injury, was improperly constructed and out of repair in that one leg was between one fourth and three quarters of an inch shorter than the other, and that its handles and bolts were loose, that the bolt, which held the brace to one leg, had too much play at the head and a wire had been twisted around the leg and brace, and that the nut “ used to be out of the bolt; it usen’t to stay where it belonged,” and that “ the nut was in the end of the bolt that run through the wheel of the barrow to tighten up the barrow — it used to work out, and didn’t tighten the barrow enough — it would come out.” The plaintiff testified that while he was wheeling the barrow loaded with bricks he noticed that it was “ a little shaky,” but that he did not know that one leg was shorter than the other, nor was there any evidence that he knew of the imperfections in the bolts. To know that a barrow is shaky, when loaded with bricks, falls short of being a comprehension of the defects above pointed out, and certainly cannot be ruled as matter of law to constitute a knowledge of the danger likely to ensue from the use of such an implement as the jury may have found this to have been, nor is it knowledge of such a [130] character as necessarily to put one using it on his guard for a further and more complete examination. Mere shabiness under a heavy load cannot be ruled as a proposition of law to indicate disparity in the length of legs or any other condition likely to cause it to tip over while resting upon a platform and being loaded. Neither could it have been ruled as matter of law to have been negligent for the plaintiff to stand between the handles of the wheelbarrow while loading it. The platform upon which he was standing was only four feet in width, without any railing or protection on one side, and a man with another wheelbarrow was working on the same platform, and had passed the plaintiff just before the accident. The trial court rightly refused to rule that there was no evidence that the defective condition of the wheelbarrow was the proximate cause of the injury. While the plaintiff was loading it with bricks, which were being handed him by a fellow workman standing on a platform below that on which the plaintiff was standing, the wheelbarrow turned over, whereby he was thrown a considerable distance to the ground. There was evidence that others who had used this wheelbarrow had put a block under the short leg to hold it even, and there was also evidence, which was admitted without objection, that, when it was in substantially the same condition as at the time of the accident and was being evenly loaded by another workman, this wheelbarrow had tipped over. The jury might have found, as men of experience in the common affairs of life, that a wheelbarrow in this condition with its defects of construction and repair was likely to tip over in the way described, and in the absence of any other explanation did in fact cause the injury. The defendant complains of the refusal to give its thirty-first and thirty-second requests unqualifiedly and of the modifications, which were stated. Neither of these requests were correct statements of the law. They required the jury to find for the defendant if the plaintiff had some knowledge that the wheelbarrow was shaky, even though he did not have a comprehension of the extent of danger to which its use exposed him. A plaintiff may be precluded from recovery if he appreciates the character and extent of the danger which causes his injury, although he fails to understand the precise manifestation of it, but he [131] cannot be so precluded, unless he understands, or as a reasonably prudent man should have understood, the nature and degree of the risk to which he is subjected. Mere shakiness in the wheelbarrow might well have been found not to put the plaintiff on his guard against danger arising from one leg being shorter than the other and bolts and nuts imperfect and out of repair. Without affirming the correctness of the modifications of the requests, it is enough to say they were at least sufficiently favorable to the defendant. The eighth request, to the effect that there was no evidence of negligence on the part of the superintendent, was properly refused, for the reason that there was some evidence tending to show that it was the duty of the superintendent to inspect the wheelbarrows and see that they were sent to the carpenter shop for repairs as occasion required. Exceptions overruled