Cunningham v. Lynn & Boston Street Railway Co.

49 N.E. 440, 170 Mass. 298, 1898 Mass. LEXIS 202

Opinion

Barker, J.

1. If the windlass was defective because it had no clutch or ratchet, the lack of those appliances was obvious, and the plaintiff’s intestate, a man of mature years, and who, besides an earlier experience in work of various kinds, had been for some time in the defendant’s service, must, in the opinion of a majority of the court, be held to have understood the dangers incident to the use of the windlass in the condition in which it was. He knew as much as any one about the machine, and what might happehi from its use. If it was negligence to use it upon the occasion of the accident, the deceased was negligent in working with it as he did. Whatever danger there was in its use he must be held to have voluntarily incurred.

2. The evidence would not justify a finding that Emery, the foreman, was a superintendent or person whose sole or principal duty was that of superintendence. O’Neil v. O’Leary, 164 Mass. 387.

Exceptions overruled.