Fitzsimmons v. City of Taunton

Massachusetts Supreme Judicial Court

Fitzsimmons v. City of Taunton

35 N.E. 549, 160 Mass. 223, 1893 Mass. LEXIS 54

CourtMassachusetts Supreme Judicial Court

DecidedNovember 29, 1893

StatusPublished

Cited by3 cases

This text of 35 N.E. 549 (Fitzsimmons v. City of Taunton) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzsimmons v. City of Taunton, 35 N.E. 549, 160 Mass. 223, 1893 Mass. LEXIS 54 (Mass. 1893).

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Opinion

Holmes, J.

This is an action for personal injuries suffered ' by the plaintiff’s intestate in consequence of the caving in of the bank of a trench in which he was at work digging. There was some evidence that the defendant had notice of the danger, and that the deceased had not. The testimony generally was that

C. A. Beed, for the defendant. J. W. Cummings, (E. Eigginson with him,) for the plaintiff.

the proper way of meeting the danger in a trench like this was to knock down the sides; but we cannot say that the jury were not warranted in finding that it was proper to shore them up. Breen v. Field, 157 Mass. 277. If they did find that that was the proper course, they were warranted in finding that the materials necessary to make the trench safe were not furnished. For although there was material at a pumping station two miles away which the foreman had authority to use, the jury might have found that this was practically inaccessible on account of the distance, and therefore that the negligence was that of the defendant, as in Connolly v. Waltham, 156 Mass. 368, 370, and not merely that of a fellow servant in failing to use the materials put at his command, as in Zeigler v. Day, 123 Mass. 152. On this view of the facts, the plaintiff’s intestate was set to work in a place of danger without the precautions being taken for his safety which his employer was bound to see taken. It will be observed that this is not the case of a servant being employed to do a piece of work which may be dangerous or not according to the way in which it is done, and which is made dangerous by a fellow servant’s using an improper tool, like Carroll v. Western Union Telegraph Co., ante, 152, a case otherwise easily distinguishable from the present, but the work ordered necessarily was dangerous unless precautions were taken. We do not say that this seems to us the most obvious conclusion from the evidence, but we deem it a possible one. Exceptions overruled.

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Holmes, J.

This is an action for personal injuries suffered ' by the plaintiff’s intestate in consequence of the caving in of the bank of a trench in which he was at work digging. There was some evidence that the defendant had notice of the danger, and that the deceased had not. The testimony generally was that

C. A. Beed, for the defendant. J. W. Cummings, (E. Eigginson with him,) for the plaintiff.

the proper way of meeting the danger in a trench like this was to knock down the sides; but we cannot say that the jury were not warranted in finding that it was proper to shore them up. Breen v. Field, 157 Mass. 277. If they did find that that was the proper course, they were warranted in finding that the materials necessary to make the trench safe were not furnished. For although there was material at a pumping station two miles away which the foreman had authority to use, the jury might have found that this was practically inaccessible on account of the distance, and therefore that the negligence was that of the defendant, as in Connolly v. Waltham, 156 Mass. 368, 370, and not merely that of a fellow servant in failing to use the materials put at his command, as in Zeigler v. Day, 123 Mass. 152. On this view of the facts, the plaintiff’s intestate was set to work in a place of danger without the precautions being taken for his safety which his employer was bound to see taken. It will be observed that this is not the case of a servant being employed to do a piece of work which may be dangerous or not according to the way in which it is done, and which is made dangerous by a fellow servant’s using an improper tool, like Carroll v. Western Union Telegraph Co., ante, 152, a case otherwise easily distinguishable from the present, but the work ordered necessarily was dangerous unless precautions were taken. We do not say that this seems to us the most obvious conclusion from the evidence, but we deem it a possible one. Exceptions overruled.

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Bluebook (online)

35 N.E. 549, 160 Mass. 223, 1893 Mass. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzsimmons-v-city-of-taunton-mass-1893.

Opinion

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