Summary
In Murray v. Nantasket Beach Steamboat Co. 248 Mass. 587, the plaintiff had been at work on a boat belonging to the defendant.
Summary of this case from Pilling v. HallOpinion
January 15, 1924.
April 29, 1924.
Present: RUGG, C.J., DeCOURCY, PIERCE, CARROLL, WAIT, JJ.
Negligence, Liability of owner of vessel to employee of contractor repairing it, Assumption of risk.
The rights and obligations of the owner of a steamboat to the employee of a contractor repairing the boat for the owner, so far as they relate to the necessary use by the employee of passageways and hatchways upon the boat, are those which appertain to the relation of master and servant at common law and apart from the workmen's compensation act.
The contractual risks, which the employee of the contractor in the circumstances above described assumes upon entering upon such employment, are those which are apparent to an ordinarily intelligent person if he sees them, or if he should have seen them in an exercise of his right to look over the place and its appliances with a view to decide whether he would enter upon the employment under the conditions disclosed.
At the trial of an action by a workman employed as a riveter by a contractor who was repairing a steamboat for the owner, there was evidence tending to show that, when the workman entered his employment, the boat was lighted with electric lights furnished by a current running from the land; that there were two enclosed places upon the boat and a passageway between them which led down into an engine room through an opening of a hatchway in the main deck; that the hatchway was a part of the regular permanent construction of the boat and was there when the boat was turned over to the contractor for repairs, and often was used as the usual, if not the only, means of approach to a lower engine room from an upper engine room; that the hatchway was uncovered; that when the electric light was not maintained, the passageway was dark; that when the plaintiff was employed he made no examination of the housed-in portion of the main deck, nor did he do so before his accident. The accident to the plaintiff occurred after the boat had been disconnected from the land and the electric light had been turned off, and when he was passing down the dark passageway in preparing his tools for removal at the end of the work. Held, that
(1) As a matter of law, the conditions and dangers attendant upon the use of the passageway were obvious and capable of being seen when the plaintiff was employed;
(2) During his employment, the plaintiff had every opportunity to examine and inquire about the conditions which might make the passageway and the entrances from it to the engine room below unsafe for his use;
(3) The lack of electric lights at the time of his injury made his duty to make an examination all the greater;
(4) As a matter of law, the plaintiff must be held to have assumed the risk of the injury he suffered;
(5) A verdict should be entered for the defendant.
TORT for personal injuries suffered by the plaintiff when employed by Richard T. Green Company in repairing for the defendant the steamboat "Mary Chilton." Writ dated May 4, 1921.
In the Superior Court, the action was tried before Irwin, J. Material evidence is described in the opinion. The jury returned a verdict for the plaintiff in the sum of $9,500, and, before recording it, the judge reserved leave under G.L.c. 231, § 120, to enter a verdict for the defendant if the case should not have been submitted to the jury. The judge then reported the case to this court for determination.
F.R. Mullin, ( P.F. Spain with him,) for the plaintiff.
S.R. Jones, for the defendant.
This is an action of tort for personal injuries, received by the plaintiff and alleged to have been caused by the negligence of the defendant. The case was tried before a jury. At the close of the plaintiff's evidence, the defendant rested and duly made a motion for a directed verdict in its favor. The motion was denied and the defendant duly excepted. The evidence was then submitted to the jury and a verdict was returned in favor of the plaintiff. Before the verdict was recorded, the trial judge, with the assent of the jury, reserved leave to enter a verdict for the defendant under the provision of G. L. c. 231, § 120. The defendant now urges in support of its motion two grounds, (1) "That the plaintiff was not in the exercise of due care;" and (2) "That the plaintiff assumed the risk of his injuries." A further question is argued of the admissibility of the evidence of a witness for the plaintiff, "That it is a usual thing to have pipe rail guards around an open hatchway aboard ship." We assume the defendant waives any other possible legal grounds for sustaining his motion.
In the discussion we assume the rights and obligations of the plaintiff and defendant, the one to the other, are those which appertain to the relation of master and servant at common law and apart from the workmen's compensation act. Sullivan v. New Bedford Gas Edison Light Co. 190 Mass. 288, 292. The contractual risks a servant assumes on entering an employment are such as are apparent to an ordinary intelligent person if he sees them, or should have seen them if he had exercised his right to look over the place and its appliances with a view to decide whether he would enter upon the employment upon the conditions disclosed. Rooney v. Sewall Day Cordage Co. 161 Mass. 153, 159. McLeod v. New York, New Haven Hartford Railroad, 191 Mass. 389. Crimmins v. Booth, 202 Mass. 17, 23.
The evidence which describes the premises where the accident occurred and the actual and constructive knowledge of the plaintiff in relation thereto, succinctly stated, is, that the plaintiff, a riveter, was employed by the Richard T. Green Company (hereafter called the Green Company) to work at his trade on the steamboat on which he was hurt, while that boat was in the shipyard and on the railway of the Green Company, for repairs by the Green Company, in accordance with a contract between that company and the defendant. When the plaintiff entered the employment of the Green Company, the boat was lighted with electric lights, furnished by a current running from the land to the boat. There was a house construction, called the engine-room casing, on the main deck, covering the engine and machinery. The space was all housed in. Inside of this house there was a room, which was called the upper engine room, on the main deck in an enclosed space, which protected that part of the machinery which projected up into that space and partly filled the closed-in house. Between the inner enclosed space and the outer enclosed space there was a passageway which led down into the engine room, through an opening or hatchway in the main deck. This hatchway was a part of the regular permanent construction of the boat and was there when the boat was turned over to the Green Company for repairs. The passageway was often used, and in connection with the hatchway was the usual means if not the only means of approach to the engine room below from the engine room above. The hatchway was uncovered, was four or five feet long, and at times had movable steps or a ladder which did not project above the level of the deck. When the electric lights were not maintained, the passageway was very dark. When the plaintiff was employed he made no examination of the housed-in portion of the main deck, and thereafter, before his accident, did not do so.
The evidence in relation to the accident shows that the plaintiff had worked for four or five days immediately prior to the accident riveting a bulkhead which ran from port to starboard through the centre of the boat; that on the day of the accident he quit work at noon for lunch; that the boat was then on the railway of the shipyard of the Green Company; that when he returned the boat was in the water at Cabot's Wharf; that when he quit at twelve o'clock, noon, so far as the plaintiff knew there was no more work to be done on the boat other than to gather up his tools; that on his return he went downstairs to the mess room, got his machine, and brought it up to the main deck; that in the mess room men were eating by the light of a lantern, the current of the electric lights being disconnected when the boat was moved from the railway to the wharf; that he started to roll up the air hose which ran from the bow of the boat to the stern through the closed-in house; that he approached the door of the house from the after part of the deck, walking forward and rolling up the hose as he walked; that he followed the hose into the enclosed dark space of the passageway, which he did not know about, three or four feet, and fell through the hatchway ten or twelve feet to the floor below.
On the facts, we think the conditions and dangers attendant upon the use of the passageway were obvious and capable of being seen when the plaintiff was employed: the main deck was lighted by electricity; the covered space apparently was lighted by artificial lights; if not, it was lighted from the lights on the main deck. During his employment the plaintiff had every opportunity to examine and inquire about the conditions which might make unsafe for his use the passageway and the entrance from it to the engine room below. His duty to make an examination or make inquiry concerning the conditions attending the use of the enclosed space was all the greater if there were no electric lights on the deck or within the space enclosed, if he did not intend to take the chance of injury from a blind use of the passageway. We think the case is covered by Cross v. Boston Maine Railroad, 223 Mass. 144, McCafferty v. Lewando's French Dyeing Cleansing Co. 194 Mass. 412, Smith v. Lincoln, 198 Mass. 388, Pearson v. Boston Gas Light Co. 201 Mass. 176, and Connolly v. Furbush, 201 Mass. 271.
In accordance with the terms of the report, it results, in the opinion of a majority of the court, that a verdict should be entered for the defendant.
So ordered.
SUPPLEMENT.
THE HONORABLE JAMES MADISON MORTON, an Associate Justice of this court from September 17, 1890, until December 15, 1913, died at Fall River on April 19, 1923. On May 17, 1924, a special sitting of the full court was held at Boston, at which there were the following proceedings:
The Attorney General addressed the court as follows:
May it please your Honors: It is entrusted to me by my brethren of the bar to present this morning to this court a memorial, prepared in committee, which expresses the Bar's appreciation of the life, character and high public service of James Madison Morton, late an associate justice of this Court.
JAMES MADISON MORTON: A MEMORIAL
In accordance with time honored and becoming usage, the Bar of the Commonwealth respectfully offers its memorial to Mr. Justice Morton, for the consideration of the assembled Court, of which he was so long and so distinctive a part, in the presence of this company of the servants of the law, of whom he was loved leader and associate before his elevation to the bench. And in the presence of this company of those in whom the dearest and most intimate affections and friendships of his life were centered; in the fellowship and sympathy of a sorrow that cannot be wholly repressed, though happily lightened by grateful memories of his universal kindliness, of his learning, of his exalted and courageous service, and his unfaltering fidelity to his fellow men, to his country and to his State, the members of the Bar would respectfully move that their memorial have place with the imperishable records of this high court, living from its creation, surviving with, and sustaining the Constitution itself, and so may speak through the vibrating chords of memory to those who knew him, and so transmit to others the inspiration of a life story of exemplary character, of professional conduct in itself the perfect realization of the true significance of the lawyer's solemn and irrevocable oath of office, of judicial demeanor, of judicial service in the accomplishment of the highest ideals of justice, that has vindicated and confirmed that faith in our court of last appeal which the people of our Commonwealth have again and again declared, and who will, so long as such as he have place upon the high seats of supreme authority, protect and preserve our courts as the sanctuary and the fortress of popular liberty under the law.
James Madison Morton, for twenty-three years an Associate Justice of the Supreme Judicial Court, was born on the fifth day of September, 1837, in Fairhaven, by the shores of that estuary which widens to the open sea through reaches by which the adventurous ships of New Bedford passed to the far icy barriers of the poles.
He was born to the traditions and to the kinship of the revered judiciary of Massachusetts, and, in happy augury and in pledge of further service in the law, his stainless mantle of office was as if by his own hand, but by the will and with the benediction of the people, laid upon the shoulders of his son, who bears his own honored name, a singular and felicitous episode in judicial history, thus continuing in unbroken tenure through two generations rations the exercise of judicial authority, which is secured and assured, under our constitutional system, so long as fidelity and accomplishment respond to the requirements of the duty to which each has been called.
Others of this family of eminent jurists were, that first Marcus Morton, Governor of the Commonwealth, and a Justice of the Supreme Court, that Marcus Morton, long time Associate and Chief Justice of the Supreme Judicial Court, to whom, again, a son, following the footsteps of his father, has become a Justice of the great trial court of the Commonwealth.
All are descendants of the race of God-fearing adventurers in the establishment of a new nation whose foundations were laid by the shores which look upon the harbor of Plymouth and beyond to the storm swept ocean from which these far-visioned voyagers came to the land of hardship and of promise, with freight more precious and more fruitful in human faith than mariner ever elsewhere brought in from the sea.
Patriots, in arms and in councils of legislation, were Justice Morton's ancestors.
Profound and ardent student of the history of his country, he had traced to their remotest sources the principles of law and of human government which framed and phrased the declarations and precepts of our State and national Constitutions.
Through years of active life which left no field of public duty without some lasting evidence of his discerning thought and beneficent effort, he taught, by example, by instruction and by spirited appeal, the true qualities of American citizenship and stirred the selfish materialist to higher and better conception of the duty that each beneficiary of our system of self government owed to the State which sustained it. Modestly, even unconsciously, he made obvious to those of dullest wit, of most sluggish thought, or dormant sentiment, the happiness of genuine faithful service to one's fellow men. None who were ever with him failed wholly to catch the impulse, the contagion of his love of honor and of truth. Every motive of his long, helpful and deservedly happy life had its source in his steadfast recognition of the simple, essential, compelling virtues of immaculate probity, of supreme fidelity to duty, of uncompromising sincerity.
He has said that, after his admission to the Bar, his life activities had been absorbed in his practice and administration of the law. Long years of laborious and preeminently successful practice at the Bar, in the conduct of important cases involving the widest range of industrial, financial and commercial interests, might well have confined and employed his every energy, yet every issue that concerned the welfare of the community in which he lived, and had made his own, engaged his sympathy, aid and potent influence.
Devoted in his service in the church of his faith, of which he was a life long member, he guided the councils of the Unitarian parish, repeatedly serving as a moderator of its meetings, and a continuous member of its standing committee.
He early displayed a mastery of the sound principles of bank administration which called him to conspicuous management in the directorate both of trust companies and of national banks. His business sagacity was exhibited in the management of great industrial enterprises, which have given fame and prosperity to the great textile city of Fall River. He was legal adviser and city solicitor of Fall River from 1864 to 1867.
All these corporate affiliations he relinquished upon his appointment as Associate Justice of the Supreme Judicial Court in 1890. For more than two score years, with ever-expanding and ripening judicial capacity, he became, and, in the history of our judiciary, will always remain, one of the very great, as always one of the most honored and beloved by Bar and people, of that great company of jurists who have, by their adjudications, welded the safeguards of our Constitution into the living and imperishable fiber of the secure government of our Commonwealth.
His demeanor upon the bench was always that of becoming gravity and dignity, yet animated always by a human sympathy. He desired always to develop and establish the true merits of the cause under inquiry. With infinite patience and interest, he encouraged the untrained advocate to present his cause in such manner that it took new power through his aid and exposition. He required of counsel of greater experience and attainment that aid in the analysis of the issue which the bench has the right to demand of learned counsel, who is himself an officer of the court.
Though the labors of a Justice of our Supreme Court are, perhaps, more insistent, more constant, and more exacting than those of any other tribunal of like jurisdiction or authority, after twenty-three years of uninterrupted service, unwearied, and in the fullest possession and exercise of unimpaired intellectual and physical powers, indeed, in the full and assured promise of even greater judicial achievement and distinction than had marked the honored years of his official life, in 1913, he resigned his high place to the universal regret of his associates of the Court, of the Bar, and of the people of the Commonwealth, whose love and respect he had in such abundant measure won and deserved.
Quickly recalled, by the people who had known him best, to all his former activities in his home city, he became again one of its most active and ardent, as he was its most honored, citizen. In spite of his accumulated years, marked by achievements which could well have measured a lifetime's possibilities, he looked always toward the future, nor dwelt wholly in reflection of the past. His was that wise philosophy that holds that today is better than yesterday, that tomorrow will be better than today. Age dared not lay his staying hand upon his erect, buoyant figure. The serene and sunny days of his latest years were gladdened for him and for all who knew him through the ever radiant enthusiasm and optimism of that perpetual youth which was in his heart and thought, indomitable and undimmed.
Age touched him only as honor, wisdom and experience, like the autumn sun wakens all nature into a beauty that no other season may display.
In the company of scholars he too had honored place, Brown University, his own Alma Mater, having worthily conferred upon him the degree of Master of Arts, and later that of Doctor of Laws. His name is borne upon the rolls of the Harvard Law School where he took his Bachelor's degree in 1861.
The vigorous health which enabled him to give so much and so generously to the service of others was doubtless in part due to the recreations he loved so dearly, which called him to the wild places in the forest where he could feel and hear the many voices of swift waters, and lure the leaping salmon to fair battle with a master in the gentle and honorable art of angling.
His truest happiness was in the sanctuary of his home, to which with gracious hospitality he welcomed the friends to whom his door was ever open. He had a fine and cultured taste in the fine arts, and knew and loved good pictures. His fireside joys were in animated and enlightening conversation and in the reading that made him companion of all those immortals who have told or sung the life story of the ages.
The public service in which Justice Morton found his greatest happiness and satisfaction was his participation as a most eminent member in the deliberations of the last Constitutional Convention of Massachusetts.
Fittingly chosen as Chairman of its Committee on the Judiciary, he so enlightened its deliberations that its reports commanded the respectful approval of the Convention and were almost invariably adopted — always, if carrying his sanction. As the labors of the Convention proceeded, sometimes developing acrimonious debates, often falling into tedious and fruitless discussion, he apparently came to realize, with surprised modesty, that suggestion or intimation of his, offered on the floor of the Convention, stilled further controversy, and his word became the articulate will of the Convention itself. As if conscious of the accepted authority of his every utterance, he rarely participated in controversial debate, speaking, for the most part, only when it was manifest that his colleagues sought his counsel to determine issues often confused through overzealous advocacy, or colored by prejudice, passion or apparent expediency.
Through no thought, ambition or even desire of his, he became the supreme and dominant figure of the Convention, guiding, persuading, convincing, but never demanding or compelling, the ever willing judgment of his colleagues.
That which the labors of the Convention produced, advancing or securing the welfare of the State, through its Constitutional Law, may be traced, in large measure, to his advice, eagerly sought by his fellows but never imperiously imposed upon them.
Not often is it vouchsafed to one still living to know fully the faith and gratitude of his contemporaries. Yet such was his happy fortune. That day when, with joyous unanimous consent, the Convention stayed all other proceedings to honor the eightieth anniversary of his birth, will forever remain in the memory of his associates as the most auspicious episode recorded in the journals of the Convention. Disclaiming any merit of his own, but deeply moved by a tribute so manifestly sincere, he spoke not of the past as of a day that was done, but of the future, and of the high destiny of the Commonwealth, of the duties of free citizens in sustaining, defending and advancing their priceless heritage under Constitutional law.
So he lives on into the days that are to come, leader, companion of those of our countrymen who are to follow us, resolute in the faith that our nation may live only in that liberty which is safeguarded by the law of justice.
May it please your Honors: As a deserved tribute to the memory of Honorable James Madison Morton, the bar of the Commonwealth moves that this memorial be made a part of the records of this Court.
Herbert Parker, Esquire, James F. Jackson, Esquire, Sherman L. Whipple, Esquire, Honorable James A. Lowell, Albert E. Pillsbury, Esquire, Honorable Hugo A. Dubuque, Augustus P. Loring, Esquire, and John W. Cummings, Esquire, then addressed the court in seconding the motion presented by the Attorney General, emphasizing by elaboration of incidents and potent descriptions, based on intimate knowledge gained from diverse points of view, the many noble and inspiring characteristics of the distinguished jurist as shown in his private life, his practice at the bar, and his services as a member of this court and, after retirement from the court, as a member of the Constitutional Convention of 1917-1919.
The Chief Justice responded as follows:
Mr. Attorney General and Brethren of the Bar:
The court gladly cooperate with the bar in a memorial to the late Mr. Justice Morton. The discerning and genuine tributes to his private integrity and his public services which have been pronounced portray a singularly complete life. He was well born. Health and strength of body and mind were his by inheritance. Near and remote kindred of his name had occupied positions of responsibility in the Province and Commonwealth for many years. He was born on September 5, 1837, in Fairhaven. He died on April 19, 1923, in Fall River in his eighty-sixth year, his eye undimmed and his natural force unabated. After spending three years in Brown University, he attended Harvard Law School, and was admitted to the bar in 1861. Talent and character marked him forthwith as destined for the highest distinctions of the profession. He lived and practiced in a county then and for many years before rich in virile and learned lawyers. His career at the bar was full of the experience and responsibility which comes in a great manufacturing community to the leader among strong competitors. Those in business exigency and family misfortune found in him sympathetic advice and shrewd direction. As a trier of causes in the courts, he was persistent, thorough, industrious, faithful, discreet, able.
After a practice of twenty-nine years at the bar, his standing was such that he came directly to the bench of this court in succession to Mr. Justice Field, who had become chief justice. He was appointed at the age of fifty-three by Governor Brackett on September 17, 1890. He resigned on December 15, 1913, at the age of seventy-six. The span of his years of judicial work covers a few months more than twenty-three years. During the last eleven years of that period he was the senior associate justice. Sixty-one members of this court have begun and concluded their work here since the Declaration of Independence. In this company he stands sixth in length of service. Only five have surpassed him. Probably not more than three or four have made greater visible contribution to the fabric of our jurisprudence.
His first opinion is Faneuil Hall Insurance Co. v. Liverpool London Globe Insurance Co. 153 Mass. 63, and his last, Lodge v. Swampscott, 216 Mass. 260. He wrote one thousand fifty-six opinions expressive of the judgment of the court, and eight dissents. These are found in sixty-four volumes of our reports. They are uniform in fine quality. Without critical and comparative analysis it would not be easy to select any of these as of outstanding superiority above others. Every one is exceedingly well done. Each is adequate, complete, simple. There is a sense of security and satisfaction in reading them. They are clear, concise, logical. They decide the points involved with sufficient fullness of discussion and nothing more. They are never overweighted with citation of authorities. They convince by their inherent reasonableness and compelling justness. His style was direct and plain. There was no attempt at embellishment. He had no genius for epigram.
It would be difficult to find his superior as a trial judge. He had keen intuition in searching out the truth. He understood men and was acquainted with affairs. He was deliberate in thought. His mind was completely open until the time came for final decision. Meditation and caution saved him from precipitate decisions. No litigant or counsel ever could feel that his side of the case had not been heard through to the end and weighed by an impartial mind. Every argument was given full consideration. He never vacillated. In the solution of all problems he went forward deliberately, with scrupulous regard to every factor, getting light from every appropriate source, to an end to which he adhered with a strength born of consciousness of careful investigation. When a conclusion had been reached, it was held with firmness and tenacity.
He brought to the court a mild manner, adequate learning, a tender heart, unwavering courage, a deep desire to do justice. His most signal characteristics were sound judgment and practical sagacity. These qualities were of inestimable value around the consultation table. He looked upon the office of judge as a sacred trust. The highest endeavor of his most exalted faculties was the least that would satisfy his conception of the obligation of a judge to his work. The printed records of his accomplishments as a judge afford slender indication of other qualities essential to usefulness in the administration of justice. His courtesy was unfailing, he was amiable and kindly, he was the personification of attentiveness and patience. His dignity invested proceedings in his court room with a decorum to which all yielded an instinctive fealty. He lived and wrought in accordance with the finest traditions of the Massachusetts judiciary.
His physical appearance arrested attention. He was tall and slender and exceptionally erect of figure. His abundant white hair gave him a venerable aspect in all his later years. He was a striking example of the scriptural proverb that "The hoary head is a crown of glory, if it be found in the way of righteousness." He looked like the ideal of a judicial magistrate. His life was simple. There was nothing of the spectacular about him. He was modest and retiring.
His natural temper was judicial. He thoroughly believed that the most august passion of the race is the love of justice. It was the breath of his life. Changing somewhat the words of the Apostle to the Gentiles — he was clad in the whole armour of justice, being girt about with probity, having on the breastplate of patience, his feet shod with unflinching courage, bearing the shield of wisdom, wearing the helmet of learning in the law and carrying the sword of impartiality. All these virtues were made a part of himself by unquenchable zeal to be a minister fit for service in the temple of justice.
In the years of retirement after the heat and burden of judicial work were laid aside, he again gave his ripe experience and garnered wisdom to the public in the Constitutional Convention of 1917-1919. Those with intimate knowledge have already spoken of the value of that contribution to the common welfare. The universal respect accorded to him by his colleagues in that body attest his capacity for cooperation and influence in a representative assembly deliberating upon the highest concerns of government.
He was most companionable. Association with him was a happiness. He was a devoted disciple of Izaak Walton, both in theory and practice. The gentle qualities essential for success with trout and salmon were his in large measure. By this pastime he carried the strength and suppleness of youth far past the three score and ten years of the psalmist. He could pen a rhyme and give charm to a story. His sense of humor was constant and keen. His was a friendly spirit. It was his delight to smooth the path of others. No narrowness bounded his taste in literature. But he was especially fond of history and biography. He had the love of the classics, which was the fruit of early training. References to the attractions of the Sabine farm of Horace were not infrequently on his lips. Indeed, that poet has well described his attributes in these lines:
"Health to enjoy the blessings sent From heaven; a mind unclouded, strong; A cheerful heart; a wise content; And honored age, . . ."
To all these virtues he added a deep conviction of the verities of Christianity, and was a constant supporter of public worship.
There is a coldness in mere mental power or intellectual achievement. Those qualities excite wonder, challenge emulation, arouse envy. Humane elements have a wider appeal and open the way to higher usefulness. Loyalty, sympathy, courage, hope, charity for common frailties, capacity for friendship, aspiration for service to one's fellowmen, are characteristics which warm the heart, kindle enthusiasm, stir the emotions and win respect. James Madison Morton combined in no mean measure all these qualities and elements and fused them into an harmonious completeness of life. His associates pay him the tribute of deep attachment for his personal charm and profound respect for his judicial accomplishments.
An order may be entered that the memorial be recorded.
The court will now adjourn.