Wagner v. Boston Elevated Railway Co. , 188 Mass. 437 ( 1905 )

Braley, J.

At the time the plaintiff received his injuries he was helping to build an elevated railway for the defendant within the location granted to it by St. 1894, c. 548. The part upon which he was engaged was being built by his employers under a contract with the A. and P. Roberts Company, who had a general contract with the defendant to build the entire structure. It follows, and is to be assumed, that he was lawfully upon the premises by the defendant’s invitation, who thus owed to him the duty of using due care to prevent his being injured from exposure to unusual dangers not known to him that might be caused by the negligent running, of its surface cars beneath the platform where he was at work. Wendell v. Baxter, 12 Gray, 494. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368. Corrigan v. Union Sugar Refinery, 98 Mass. 577. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. Severy v. Nickerson, 120 Mass. 306, 307. Shea v. Gurney, 163 Mass. 184. Cowen v. Kirby, 180 Mass. 504.

There was evidence on the part of the plaintiff which tended to show that the platform upon which he stood was suspended over a curve in the surface track, and although the trolley wire sagged, the trolley pole would not become disengaged if the car ran slowly.

It further appeared that the car the trolley pole of which caused the accident was running at an unusual speed of from five to seven miles an hour notwithstanding orders had been given by the defendant to its motormen to reduce speed when passing under the overhead structure where the men were at work. An electrical expert, who testified in behalf, of the plaintiff, stated that if the conducting wire was slack, and the car moved rapidly, the trolley would be thrown, for the higher the speed the more danger there was of such an occurrence.

If this testimony was believed, the jury could find that through the negligence of the defendant’s servants the trolley pole left the conducting wire, flew up, struck the platform, and by the violence of its impact caused it to fall.

The defendant, however, urgently claims that the plaintiff was not in the exercise of due care, and that by his conduct he assumed the risk of all accidents that might arise under his employment, even if caused by its negligence.

To support this contention it principally relies on the case of Woodley v. Metropolitan District Railway, 2 Ex. Div. 384. It was there said by the majority of a divided court that the plaintiff had assumed the risk of negligence on the part of the defendant’s servants, though at the time of his injury he was in the employment of a contractor, and rightfully upon the defendant’s premises under his master’s contract.

But it was held in the later cases of Yarmouth v. France, 19 Q. B. D. 647, Thrussell v. Handyside, 20 Q. B. D. 359, 365, and Smith v. Baker, [1891] A. C. 325, that knowledge by the servant did not conclusively limit the liability of the master, and it was a question of fact whether he voluntarily took the chance of injury.

This last case was referred to with approval in Mahoney v. Dore, 155 Mass. 513, 519, where it was said by Mr. Justice Knowlton, “We are not aware of any adjudications in this Commonwealth which are necessarily inconsistent with this just and reasonable doctrine, although different opinions have been expressed on this point by eminent judges both here and in England.”

If a servant assumes known and obvious risks, mere knowledge that they exist is not sufficient, as there must be a voluntary exposure of himself, with a full appreciation of the danger that may be incurred. Leary v. Boston & Albany Railroad, 139 Mass. 580. Scanlon v. Boston & Albany Railroad, 147 Mass. 484. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. It is true that these suits were by a servant for his master’s negligence which was not impliedly assumed by his contract of employment. But as the doctrine is held to be applicable where, as in the present case, this relation does not exist, to bar a recovery similar conditions of knowledge and consent must be found. Wood v. Locke, 147 Mass. 604.

Because they were not subject to the control of a common master, the plaintiff was not in any sense a fellow servant of the defendant’s employees. Morgan v. Smith, 159 Mass. 570. Reagan v. Casey, 160 Mass. 374. Delory v. Blodgett, 185 Mass. 126. Smith v. Steele, L. R. 10 Q. B. 125.

The plaintiff’s evidence was to the effect that up to the time of his injury he had observed that the speed of the cars slackened when they passed over the curve, and the pole followed the trolley wire. Whether in the exercise of due care he ought reasonably to have anticipated that they might run faster, with the corresponding probability of injury to himself, or whether by his conduct he willingly exposed himself to what finally occurred, were issues of fact for the jury. Powers v. Boston, 154 Mass. 60, 63. Hannah v. Connecticut River Railroad, 154 Mass. 529, 533. Ryan v. New York, New Haven, & Hartford Railroad, 169 Mass. 267, 271. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586.

The plaintiff then cannot be held as a matter of law to have been negligent in placing himself in a position concerning the full danger of which he says he had no knowledge simply because he chose to continue his work in a place provided for him by his employer. Mahoney v. Dore, ubi supra. Bell v. New York, New Haven, & Hartford Railroad, 168 Mass. 443. Murphy v. Marston Coal Co. 183 Mass. 385, 388.

But the defendant further contends that the plaintiff agreed to incur the particular danger by which his injuries were caused, and therefore he cannot recover.

By the usual contract of employment it is settled, whether at common law or under R. L. c. 106, § 71, that the servant impliedly agrees to take things as he finds them, and for the wages paid to expose himself to the ordinary dangers incidental to the service, but this does not include concealed risks or subsequent negligence of the master. O'Maley v. South Boston Gas Light Co. 158 Mass. 135, 136. Garant v. Cashman, 183 Mass. 13.

Here the plaintiff sustained no contractual relation to the defendant whatever, unless it be found in the general contract for the entire work. To this agreement he was not a party, neither is there any evidence that it was brought to his knowledge. Moreover, he was in the employment of contractors who not only were strangers to it, but also are not shown to have known of its terms. Abbey v. Chase, 6 Cush. 54. Burt v. Boston, 122 Mass. 223, 227. Leydecker v. Brintnall, 158 Mass. 292, 297. Railton v. Taylor, 20 R. I. 279.

If this contract could be treated as creating an exemption of the defendant from liability for injuries caused to the plaintiff by its negligence while in its employment such an agreement would be in violation of R. L. c. 106, § 16, and unenforceable. But as the relation of master and servant did not exist a general release by him would have been valid.

In the building of the elevated railway the contract provided that the work of construction should proceed in connection with the usual operation of the surface road, which was located directly under the overhead structure. That during the progress of the undertaking accidents thereby might be caused to the employees of eaeh of the contracting parties, or to others whether passengers upon the defendant’s cars or travellers upon the public ways, was apparent.

Upon an examination of its provisions so far as they relate to the question raised, the contractor agrees to indemnify the defendant for all damages it may sustain by reason of suits, by whomsoever brought, for injuries arising from the negligence of workmen, who may be employed under the contract, but for which the defendant primarily would be responsible. Carleton v. Franconia Iron & Steel Co., ubi supra. Sturges v. Theological Education Society, 130 Mass. 414. Woodman v. Metropolitan Railroad, 149 Mass. 335.

The only language found which gives even a semblance to the defendant’s argument is contained in § 55: “ The company will not be responsible for any accidents caused by the trolley, feed, or other wires, to men or materials upon or about the work in connection with the performance by the contractor of his work hereunder, and the contractor agrees to hold the company harmless and indemnified from any claims in respect to such accidents.” In our opinion this clause does not support such a view.

The instructions under which the case was submitted to the jury were full and accurate, and so far as proper the rulings requested by the defendant were adopted.

Exceptions overruled.