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Samuel D. Conant, for plaintiffs. Dana Malone, for defendant.
BRALEY, J. A refusal to rule at the close of the evidence that these actions could could not be maintained raises the questions of law presented by the exceptions. They are, whether the plaintiffs' injuries were caused by want of a sufficient railing upon the bridge which formed part of the highway, thus causing a defect which might have been remedied by reasonable diligence on the part of the defendant, and whether at the time of the accident they were in the exercise of due care.
In speaking of this obligation imposed upon towns, Mr. Justice Ames, in Marshall v. Ipswich, 110 Mass. 522, 526, said, "The purpose of such railings is to make the way itself safe and proper for use. They are required in the case of bridges, embankments or causeways, and generally where excavations, deep water, etc., are so near to the line of public travel as to expose travelers to unusual hazards."
It is sufficient to say that upon this question, which was an issue of fact, the jury could find that the highway originally laid out in 1784, and relocated in 1826, had become defective because of the absence of a sufficient railing, which if erected and maintained, would have rendered this part of the road safe and convenient for the use of travelers, and prevented the accident. Lyman v. Amherst, 107 Mass. 339; Harris v. Newbury, 128 Mass. 321; Tisdale v. Bridgewater, 167 Mass. 248, 45 N. E. 730; Harris v. Great Barrington, 169 Mass. 273, 47 N. E. 881.
This defective condition was well known to the husband who acted as driver, but neither such knowledge, nor the opportunity for immediate observation which was afforded as the carriage approached the bridge, are conclusive upon the question of contributory negligence, but such knowledge and opportunity are to be treated rather as circumstances to be considered by the jury with the other testimony bearing upon this issue. We refer only to a few of the more recent decisions. Powers v. Boston, 154 Mass. 60, 63, 27 N. E. 995; McGuinness v. Worcester, 160 Mass. 272, 273, 35 N. E. 1068, and cases cited; St. Germain v. Fall River, 177 Mass. 550, 59 N. E. 447; Torphy v. Fall River, 188 Mass. 310, 74 N. E. 465; Campbell v. Boston, 189 Mass. 7, 10, 75 N. E. 96; Hennessey v. Taylor, 189 Mass. 583, 586, 76 N. E. 224. See, also, Urquhart v. Smith & Anthony Co., 191 Mass. 78 N. E. 410.
The further important fact that the horse was blind also comes within this division, 78 N.E.-48
for how far loss of sight may have rendered him unmanageable, or contributed to the accident, depended largely upon the weight to be given to the evidence, when viewed in the light of common experience, that notwithstanding this infirmity he could be used and driven with safety. Brackenridge v. Fitchburg, 145 Mass. 160, 13 N. E. 457; Smith v. Wildes, 143 Mass. 556, 10 N. E. 446.
If the inference either of care or of negligence which might have been drawn from this portion of the evidence was solely for the jury, nothing further remains upon which the defendant's argument can rest, except the conduct of the driver in the management of the horse. The degree of care and skill with which a horse is being driven, or which may be required under certain conditions generally is a question peculiarly within the province of the jury to decide. Stevens v. Boxford, 10 Allen, 25, 26, 87 Am. Dec. 616; Blood v. Tyngsborough, 103 Mass. 509; Hill v. Seekonk, 119 Mass. 85; Bly v. Haverhill, 110 Mass. 520.
To drive in the daytime, with the reins in one hand, at a slow trot, a blind horse which could have been found to have been gentle and unaccustomed to stumble, even if the way led over a narrow bridge without suitable railings, required only that degree of care which the ordinarily careful man would exercise if placed in an analogous situation. Undoubtedly, as the event proved, it would have been more prudent to have guided the horse by holding the reins in both hands, and to have given exclusive attention to keeping him in the center of the bridge, instead of driving with one hand, and using the other to adjust the carriage robe, with the consequent interruption of the driver's attention to the exact course of travel; yet such conduct cannot be said as matter of law to be so extraordinary as not to be fairly incidental to the ordinary use of our public ways by travelers by carriage. Wright v. Templeton, 132 Mass. 49; Kelley v. Blackstone, 147 Mass. 451, 18 N. E. 217, 9 Am. St. Rep. 730; Britton v. Cummington, 107 Mass. 347.
It accordingly follows that the rulings requested were rightly refused, and the cases were properly submitted to the jury. Exceptions overruled.
for an individual is not necessarily lawful for a combination.
[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trade Unions, § 1.]
2. CONSPIRACY TRADE UNIONS RIGHT TO STRIKE.
Bricklayers' and masons' unions may lawfully compete for the additional work of pointing the buildings they construct in the exercise of their right of competition, and may refuse to lay brick unless they are given the work of pointing them when laid, though the contractors may prefer to give the work to regular pointers, and though the effect of complying with the union demands apparently will destroy the pointers' business.
[Ed. Note.-For cases in point, see vol._10, Cent. Dig. Conspiracy, § 9; vol. 46, Cent. Dig. Trade Unions, § 5.]
3. SAME SYMPATHETIC STRIKES - INTERFERENCE WITH THIRD PERSONS.
Union bricklayers and masons employed by a contractor on other buildings cannot legally strike because the contractor was working on a building on which work was being done by nonunion pointers employed by the owners of the building, as the organized laborers' right of coercion is limited to strikes on persons with whom the organization has a trade dispute.
[Ed. Note.-For cases in point, see vol._10, Cent. Dig. Conspiracy, § 9; vol. 46, Cent. Dig. Trade Unions, § 5.]
Robert H. Pickett, Charles A. Pickett, Thomas J. Lally and Walter H. Wilkins, or to refrain from further employing them in and about their trade and occupation"; (2) "from combining and conspiring to compel the owners of the so-called Ford Building on Ashburton Place in the city of Boston to break or decline to carry out their said contract with the complainant Robert H. Pickett"; and (3) "from combining and conspiring to interfere with the said complainants, or any of them, in the practice of their trade and occupation, or to prevent them from obtaining further employment thereat."
The defendants were the officers of two unincorporated bricklayers' unions, to to wit, Unions No. 3 and No. 27, and of one stone masons' union, to wit, Union No. 9. The plaintiffs also undertook to make each one of the three unincorporated unions parties defendant. The Bricklayers' Union No. 27 seems from the evidence not to have been concerned in the matters in dispute. For this reason we shall not refer to it again except to show later on that there is no evidence that it took part in the matters here in question. The individual defendants were one Driscoll, the walking delegate of the Bricklayers' Union No. 3, one Walsh, the walking Idelegate of the Stone Masons' Union No. 9, and other persons who were officers of those two unions.
It appears from the evidence that the trade of brick and stone pointing is a trade which, in the neighborhood of the city of Boston at any rate, has been carried on to some extent as a separate trade for nearly if not quite 100 years. It further appears that there are now some 45 men engaged in that trade in the vicinity of that city.
The trade of a brick or stone pointer consists in going over a building (generally when it is first erected) to clean it and to put a finish on the mortar of the joints. Apparent
Bill by Robert H. Pickett and others against one Walsh and others to enjoin defendants from conspiring to interfere with plaintiffsly in the city of Worcester, and to some exin pursuing their trade. From a decree for plaintiffs, defendants appeal. Decree modified.
Fredk. W. Mansfield, for appellants. Elder & Whitman, for appellees.
LORING, J. This suit comes before us on an appeal from a final decree, where the evidence was taken by a commissioner and where no findings of fact were made in the lower court.
The bill was brought to enjoin the defendants from combining and conspiring to interfere with the plaintiffs in pursuing their trade of brick and stone pointers. The purpose of the bill as stated in the prayers for relief was to enjoin the defendants (1) "from combining and conspiring in any way to compel L. P. Soule & Son Company, or any other person, firm or corporation, by force, threats, intimidation or coercion, to discharge the complainants in the bill of complaint, to wit:
tent in the city of Boston, this work of pointing is done by bricklayers and stone masons.
The dispute which gave rise to the suit now before us had its origin in a set of rules adopted in January, 1905, by the Bricklay ers' and Masons' International Union of America, to which the two unions here in question were subordinate unions. This set of rules contained a provision that bricklaying masonry should consist (inter alia) of "all pointing and cleaning brick wall," and that stone masonry should consist (inter alia) of the "cleaning and pointing of stone work." The practical working of the principles of brick and stone masonry as defined in these rules was left to the subordinate unions.
By the constitution, by-laws and rules of order of the Bricklayers' Union No. 3, it is provided that members shall not accept employment "where a difficulty exists in consequence of questions involving the rules which govern the Union", and that any mem
ber violating a law of the union shall on conviction "be reprimanded, suspended or fined at the discretion of the union." No similar provision appears in the extract from the constitution of the Stone Masons' Union which was in evidence, but it is not a violent assumption from the action of the masons and from the testimony of Walsh, the walking delegate of the Stone Masons' Union that the members of the Masons' Union stood on the same footing as the members of the Bricklayers' Union in this respect.
In other words, the make-up of the two unions was such that any member of a sub. ordinate union (which had adopted a working rule containing in substance the provisions of the working rules of the International Union as to cleaning and pointing buildings) who continued to work on a job on which a pointer was at work was liable to be reprimanded, fined or suspended.
This brings us to the action taken by the unions here in question.
There was an executive committee of the two unions. On July 28, 1905, this executive committee voted "that beginning September 18, 1905, no member of the bricklayers' and masons' unions of Boston and vicinity, will work on any building where the contractor will not agree to have the pointing done by bricklayers or masons."
This action of the executive committee was formally adopted by the Bricklayers' Union No. 3, and seems to have been informally adopted by the Stone Masons' Union No 9. In pursuance thereof the following circular letter was issued: "The bricklayers' and masons' unions of Boston and vicinity have voted that no bricklayer or mason will work for any firm or contractor who will not employ bricklayers or masons to do the pointing of brick, terra cotta and stone masonry. This action will go into effect September 18, 1905."
In September, 1905, L. D. Willcutt & Son as general contractors were erecting (among other buildings) a stone building on the corner of Massachusetts avenue and Boylston street in Boston. On the 18th day of that month, Mr. L. D. Willcutt of that firm was notified that if he did not discharge the pointers who were working for his firm in pointing that building all the masons and bricklayers working for his firm on other buildings in Boston (all of whom were union men) would strike. Thereupon he suspended the work which was being done by the pointers on the building on the corner of Massachusetts avenue and Boylston street. This evidence was admitted to show that there was a general scheme that where pointing was given to any one besides union bricklayers and stone masons there would be a strike.
On November 13, 1905, the defendant Walsh, the walking delegate of the Stone Masons' Union No. 9, and the defendant Driscoll, the walking delegate of the Brick
layers' Union No. 3, came to the Ford Building, for which the corporation of L. P. Soule & Son Company were the general contractors, and found that the cleaning and pointing of that building was being done under a contract between the owners of the building and Robert H. Pickett, one of the plaintiffs here. They then went to a brick building which was being erected by the L. P. Soule & Son Company as contractors, namely, a cold storage warehouse on Eastern avenue, where Driscoll notified the man that the pointing at the Ford Building was being done by pointers. In consequence all the bricklayers employed by the L. P. Soule & Son Company on the cold storage building, 50 in all, being union men, struck work on that or the next day. The next day, November 14, Walsh went to a stone building which was being erected by the same corporation for the International Trust Company on the corner of Arch and Devonshire streets, and told the workmen there of the pointing on the Ford Building; whereupon all the stone masons working there, 5 or 6 in all, being union men, struck work.
This bill was filed on November 20, 1905. It seems to have come on for hearing on December 5, 1905. As we have said, the evidence was taken by a commissioner, a final decree in favor of the plaintiffs on all three grounds was made on December 11th, without any special findings of fact, and the case is here on appeal from that decree. It appeared from the testimony of Parker F. Soule, an officer of the L. P. Soule & Son Company, that it was cheaper to make a contract with pointers for the work of pointing and cleaning than to employ stone masons and bricklayers to do that work. It appeared from other evidence that the wages of a bricklayer or stone mason were 55 cents an hour, while pointers are paid $3.00 a day of eight hours, or 371⁄2 cents an hour. It further appeared from Mr. Soule's testimony that he preferred to give the work to the pointers because in cleaning a building acid has to be used, and, if the acid is used to excess, stains are caused which in some instances it is impossible to "get out"; he did not think that the bricklayers and stone masons were competent to use these acids. He preferred also to give the work to the pointers because the work which is done by the pointers usually is done by contract, in which case the general contractor who employs the pointers is relieved from responsibility on account of accidents which may occur because of the fact that the work is done on a swinging stage, at times at great heights. It also appeared from the evidence that L. P. Soule & Son Company were not the only contractors who thought they got better work at a smaller cost and with less liability by making a contract with stone pointers for the doing of this work than than by employing stone masons and bricklayers to do it.
All this was explained to the walking delegate of the Bricklayers' Union here in question, at an interview between Mr. Soule and the walking delegate of that union held within two days of the strike. It also appeared that at that interview the delegate told Mr. Soule that while it had been against the rules of the union that any member should take piece work, the taking of piece work recently had been allowed; whereupon Mr. Soule told him that "if he had any members of his union who were reliable men, whom we could have confidence enough in to let a contract to, who would give prices as low, * * * he would have no trouble in getting all the stone pointing there was going." No offer to make. a contract on these terms was made, and on the evidence it must be assumed that there was nothing in this statement of the defendant Walsh.
It further appeared from the evidence that the brick and stone pointers of Boston applied to the Building Trades Council for a charter. It is stated in the record of the Brickmasons' Union No. 3, that "the said pointers about a year ago applied to the A. F. of L. for a charter, which was denied them, the American Federation of Labor taking the stand that brick and stone pointing was a part of the bricklayers and masons trade." On September 11, 1905, the Brickmasons' Union No. 3 voted to "file a protest to the B. T. C. against their granting a charter to the brick and stone pointers of Boston," and on September 18, it was vot ed "that this committee [sic] send communication to B. T. C. requesting that body not to grant a charter to the so-called brick and stone pointers." It was admitted that the men engaged in the business of brick and stone pointers were not qualified for the business of bricklayers and stone
It also appeared that at the interview between Driscoll and Mr. Willcutt, Mr. Willcutt told Driscoll that he did not believe that when there were 1,200 men in the union and 30 pointers outside, all this fuss was being made to get the pointers' work for the union men; that he thought it was "simply a question of dictation to us"; and on Mr. Willcutt's asking him (Driscoll) "Do you really want it or do you want to drive the men out of business?" Driscoll smiled and said: "That is a charitable way of looking at it."
There seem therefore to be three causes of action upheld by the decree.
In the first place, Robert H. Pickett, one of the plaintiffs, had a contract with the owners of the Ford Building and was at work under it when the defendants struck. He seeks protection from a strike on L. P. Soule & Son Company to force the owners of the Ford Building to give this work to the unions and to take it away from him. Except for the fact of this contract in which
the plaintiff Robert H. Pickett was alone concerned, the first and second causes of action are alike.
The second cause of action consists in the effort of all the plaintiffs to be protected from being discharged or not employed by the L. P. Soule & Son Company because the defendants struck work for that corporation so long as that corporation worked on a building on which Robert H. Pickett was employed by the owners of that building.
Finally, the plaintiffs sought to be protected against a strike by the defendants in order to get the work of pointing for the members of their unions.
No objections have been taken to the bill on the ground of multifariousness. We shall therefore consider all three causes of action.
We will consider first the last of the three causes of action.
The question, so far as this the third cause of action goes, apart from a question of fact which we will deal with later, is whether the defendant unions have a right to strike for the purpose for which they struck; or, to put it more accurately and more narrowly, it is this: Is a union of bricklayers and stone masons justified in striking to force a contractor to employ them by the day to do cleaning and pointing at higher wages than pointers are paid, where the contractors wish to make contracts with the pointers for such work to be done by the piece, because they think they get better work at less cost with no liability for accidents, and where the pointers wish to make contracts for that work with the contractors on terms satisfactory to them?
In other words, we have to deal with one of the great and pressing questions growing out of the powerful combinations, sometimes of capital and sometimes of labor, which have been instituted in recent years where their actions come into conflict with the interests of individuals. The combination in the case at bar is a combination of workmen, and the conflict is between a labor union on the one hand and several unorganized laborers on the other hand.
It is only in recent years that these great and powerful combinations have made their appearance, and the limits to which they may go in enforcing their demands are far from being settled.
It is settled however that laborers have a right to organize as labor unions to promote their welfare.
Further, there is no question of the general right of a labor union to strike.
On the other hand it is settled that some strikes by a labor union are illegal. It was held in Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287, that a strike by the members of labor unions was illegal when set on foot to force their employer to pay a fine imposed upon him by the union of which he was not a member, for not giving the
union all his work. To the same effect see March v. Bricklayers' & Plasterers' Union No. 1 (Conn.) 63 Atl. 291. Again, it was held in Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330, that a labor union could not force other workmen to join it by refusing to work if workmen were employed who were not members of that union. To the same effect see Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783; O'Brien v. People (Ill.) 75 N. E. 108; Loewe V. California State Federation of Labor (C. C.) 139 Fed. 71. And see in this connection Giblan v. National Amalgamated Labourers Union  2 K. B. 600.
When and for what end this power of coercion and compulsion commonly known as a strike may be legally used is the question which this case calls upon us to decide. In the present state of the authorities it becomes necessary to consider the general principles governing labor unions and strikes by labor unions.
The right of laborers to organize unions and to utilize such organizations by instituting a strike is an exercise of the common law right of every citizen to pursue his calling, whether of labor or business, as he in his judgment thinks fit. It is pointed out in Carew v, Rutherford, 106 Mass. 1, 14, 8 Am. Rep. 287, that in the earlier days of the colony the government undertook to control the conduct of labor and business to some extent, but that later this policy of regulation was abandoned and all citizens were left free to pursue their calling, whether of labor. or business, as seemed to them best. This common law right was raised to the dignity of a constitutional right by being incorporated in the Constitution of the commonwealth. So far as the question now before us goes it is of no consequence whether the right to pursue one's calling (wheth er it be of labor or of business) is a common law right or a constitutional right, since the violation of it here complained of is on the part of individuals and not on the part of the Legislature. What is of consequence here is that such a right exists. In article 1 of the Declaration of Rights it is declared that "all men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of quiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." It is in the exercise of this right that laborers can legally combine together in what are called labor unions.
This right of one or more citizens to pursue his or their calling as he or they see fit is limited by the existence of the same right in all other citizens. The right and the result are accurately stated by Sir William Erle in his book on Trade Unions in these words: "Every person has a right under the
law, as between him and his fellow subjects, to full freedom in disposing of his own labor or his own capital according to his own will. It follows that every other person is subject to the correlative duty arising therefrom, and is prohibited from any obstruction to the fullest exercise of this right which can be made compatible with the exercise of similar rights by others;" cited by this court in Plant v. Woods, 176 Mass. 492, 498, 57 N. E. 1011, 51 L. R. A. 339, 75 Am. St. Rep. 330.
We have now arrived at the point where a labor union, being an organization brought about by the exercise on the part of its members of the right of every citizen to pursue his calling as he thinks best is limited in what it can do by the existence of the same right in each and every other citizen to pursue his and their calling as he or they think best.
In addition to the limitation thus put on labor unions there is a fact which puts a further limitation on what acts a labor union can legally do. That is the increase of power which a combination of citizens has over the individual citizen. Take for example the power of a labor union to compel by a strike compliance with its demands. Speaking generally a strike to be successful means not only coercion and compulsion but coercion and compulsion which, for practical purposes, are irresistible. A successful strike by laborers means, in many if not most cases, that for practical purposes the strikers have such a control of the labor which the employer must have that he has to yield to their demands. A single individual may well be left to take his chances in a struggle with another individual. But in a struggle with a number of persons combined together to fight an individual, the individual's chance is small, if it exists at all. It is plain that a strike by a combination of persons has a power of coercion which an individual does not have.
The result of this greater power of coercion on the part of a combination of individuals is that what is lawful for an individual is not the test of what is lawful for a combination of individuals; or to state it in another way, there are things which it is lawful for an individual to do which it is not lawful for a combination of individuals to do. Take for example the case put in Allen v. Flood  A. C. 1, 165, of a butler refusing to renew a contract of services because the cook was personally distasteful to him, whereupon, in order to secure the services of the butler, the master refrains from re-engaging the cook whose term of service also had expired. We have no doubt that it is within the legal rights of a single person to refuse to work with another for the reason that the other person is distasteful to him, or for any other reason however arbitrary. But it is established in this commonwealth that it is not legal (even where he wishes to do so) for