John Millard vs. West End Street Railway Company

Massachusetts Supreme Judicial Court1899-05-26

173 Mass. 512

Summary · law.co

Holding. The trial court's judgment for the defendant was reversed because the worker neither obviously assumed the risk nor failed to exercise due care; the injury resulted from the superintendent's isolated negligent act rather than an inherent workplace danger.

A worker for a street railway company was injured when a pile of lumber collapsed beneath him while he was following his superintendent's orders to remove a timber from the pile. The superintendent had negligently supervised the pile's construction in an unstable manner and ordered the worker onto it without warning of any danger. The trial court ruled against the worker on the theory that the risk was obvious and he had assumed it by accepting employment, but the appellate court disagreed with this reasoning.

The court found sufficient evidence that the worker exercised reasonable care and that the superintendent acted negligently. The court rejected the argument that the worker should have inspected the pile before climbing it, particularly given that he received a sudden order to do so and the pile's dangerous condition was not apparent to a reasonable observer. The court distinguished this case from prior decisions involving inherent workplace hazards, characterizing this injury as resulting from an isolated act of carelessness rather than a danger naturally incident to the employment.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a worker assumes a known risk by accepting employment
Whether a worker must inspect equipment before using it on a supervisor's orders
Distinction between inherent occupational hazards and isolated negligent acts
Standard of care owed by supervisors to subordinate workers

Procedural posture

The trial court ruled in favor of the defendant based on assumption of risk; the worker appealed and the exceptions were sustained.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lathrop, J.

The ruling of the court below in favor of the defendant was upon the ground that the risk was obvious, and that the plaintiff assumed the risk when he entered the employ of the defendant. We are of opinion that this ruling was wrong, and that the exceptions must be sustained.

There was evidence in the case that the pile of lumber which caused the injury was erected under the supervision of one Smith, a superintendent of the defendant, who carelessly ordered it to be done in a way which would be likely to cause it to tumble down, and who, when his attention was called to the matter, persisted in his own way of doing the job. There was also evidence that the plaintiff knew nothing about the manner in which the pile was built, until the moment of the injury. He worked near the pile for two days, building a fence, but he testified that he did not notice the pile. The pile was intended to remain but a short time, as the timbers were to be used in repairing a wharf.

In this condition of affairs, Smith ordered the plaintiff to get upon the pile, telling him “ to get up there quick and throw that piece of timber into the water.” The plaintiff went upon the pile, and, just as he started to pry off this piece of timber, the pile gave way, and the plaintiff was injured.

There was certainly evidence for the jury that the plaintiff was in the exercise of due care, and that the superintendent was negligent. This is not the case where an employee is injured by coming in contact with machinery near which he is working, as in Kenney v. Hingham Cordage Co. 168 Mass. 278. Nor is it the case of a workman on a construction track laid on secondhand sleepers, where spikes are likely to occur, as in ONeil v. Keyes, 168 Mass. 517, the cases principally relied upon by the defendant.

It is, however, argued that the plaintiff, if he had looked at the pile, would have noticed its dangerous condition, and, if he did not see it, he could have seen it and understood it if he had looked. This is assuming that the condition of the pile was dangerous from a simple inspection. It does not appear from the evidence that its danger was apparent. It would be going far to say that the plaintiff should have known what was not apparent to the superintendent. But we do not think that the plaintiff, when he received the sudden order to go upon the pile, was bound at his peril to inspect it or to ascertain whether it was safe or not. To say, as matter of law, that the plaintiff assumed the risk in this ease is going further than the court has gone in this class of cases, and further than we think it ought to go. Burgess v. Davis Sulphur Ore Co. 165 Mass. 71. McKee v. Tourtellotte, 167 Mass. 69. The danger in this case was owing wholly to an isolated act of carelessness on the part of a superintendent. This is not a danger which naturally grows out of the employment, or is necessarily incident to it. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532. Exceptions sustained.