Williamson v. Sheldon Marble Co.

ROWELL, J. Recovery can be had only on the ground that the death of the intestate was caused by the wrongful neglect or default of the defendant, for it is not claimed that it was caused by the wrongful act of the defendant. Conceding for present purposes that the testimony tends to show that the intestate was killed by falling from the jog in the wall, it remains to consider whether it also tends to show that his death was caused by the neglect of any and what duty that the defendant owed to him. Undoubtedly access to the valve might have been made safer, and probably entirely safe for one exercising due care. But a man has a right to carry on a business, dangerous in itself, or dangerous by reason of the way in which he carries it on, if it is not unlawful and does not interfere with the right of others. Hence the defendant had a right to omit to provide other means of reaching the valve than were provided. The danger of going to the valve along the jog in the wall when it was icy was apparent to ordinary observation, and that it was sure to be icy in freezing weather, and was icy at the time in question, were equally [432] apparent, for the weather was cold and the water constantly dripped from the valves and made “a deal of ice,” as one witness put it, there was “a pile of ice on every throttle,” extending down from two to five feet, and the jog was mostly covered with ice, and fires of waste and kerosene were kept to prevent the pipes from freezing. Hence the intestate, if he was of sufficient age, experience, and capacity to fully comprehend the danger he incurred in going to the valve, went at his own risk, and the defendant is not liable. But the dangers of a particular place may be apparent to one person and not to another. A person of mature years and experience might fully comprehend them, while a youth, from lack of years, experience, or capacity, might wholly fail to comprehend them. It would be a breach of duty on the part of a master to expose a servant of the latter character, even with his consent, to great danger, without instruction and caution sufficient to enable him to comprehend the danger, and to do his work safely, with proper care on his part. It was, therefore, competent for the plaintiff to show that there had been such a breach of duty on the part of the defendant, and that, although the intestate continued to work in the place he did and assented to do so, yet he was in fact incapable of appreciating the danger to which he exposed himself by going to the valve and of going there safely without instructions and cautions that he did not receive. Sullivan v. India Manufacturing Co. 113 Mass. 396. But it cannot be assumed that this duty, if it existed, was not performed ; the burden was on the plaintiff to show both its existence and its non-performance, and the testimony does not tend to show either. Sullivan v. India Manufacturing Co. 113 Mass. 396, 399; Ciriack v. Merchants' Woolen Co. 146 Mass. 182; Chicago Anderson Pressed Brick Co. v. Reinneiger, 140 Ill. 334; 33 Am. St. Rep. 249. There is another class of cases in which the master is not relieved from liability for injuries to his servant who is re [433] quired to perform dangerous work, although the danger is obvious and warning and instruction have been given; as, when the servant is so young and inexperienced as not to be able to comprehend and guard against the danger to which he is exposed. A master would have no right to set such a servant at such work, and he would do so at his peril. But this case is not assignable to that class, for the testimony does not tend to show that the intestate was such a servant. In the absence of anything to show the contrary it must be assumed that he had the intelligence and understanding that boys of his age usually have. Ciriack v. Merchants’ Woolen Co. 146 Mass. 182. The testimony does not, therefore, tend to show that the death of the intestate was caused by the neglect of any duty that the defendant owed to him, and a verdict for the defendant was properly directed. Judgment affirmed.