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T. Cutting against the same defendant, for personal injuries and for injuries to property received on account of a defective highway. There was a verdict for plaintiff in each case, and defendant brings exceptions. Exceptions overruled.
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 becorne 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,
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, 143 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.
(192 Mass. 572) PICKETT et al. v. WALSH et al. (Supreme Judicial Court of Massachusetts.
Suffolk. Oct. 16, 1906.) 1. TRADE UNIONS - RIGHT OF LABORERS TO ORGANIZE.
Under Declaration of Rights, art. 1, guarantying to all men the right of acquiring, possessing, and protecting property, laborers can legally combine into a labor union, with the limitation in what it can do by the existence of the same right in every other citizen to pursue his calling as he may deem best, and the further limitation, coming from the increased power of organization, that what is lawful
for an individual is not necessarily lawful for Robert H. Pickett, Charles A. Pickett, Thomas a combination,
J. Lally and Walter H. Wilkins, or to refrain [Ed. Note.-For_cases in point, see vol. 46,
from further employing them in and about Cent. Dig. Trade Unions, $ 1.]
their trade and occupation”; (2) "from com2. CONSPIRACY - TRADE UNIONS - RIGHT TO STRIKE.
bining and conspiring to compel the owners Bricklayers' and masons' unions may law
of the so-called Ford Building on Ashburton fully compete for the additional work of point- Place in the city of Boston to break or deing the buildings they construct in the exercise
cline to carry out their said contract with of their right of competition, and may refuse to lay brick unless they are given the work of
the complainant Robert H. Pickett"; and pointing them when laid, though the contractors (3) "from combining and conspiring to inmay prefer to give the work to regular pointers, terfere with the said complainants, or any of and though the effect of complying with the union demands apparently will destroy the
them, in the practice of their trade and occupointers' business.
pation, or to prevent them from obtaining fuc[Ed. _Note.-For cases in point, see vol. 10, ther employment thereat." Cent. Dig. Conspiracy, 8 9; vol. 46, Cent. Dig. The defendants were the officers of two unTrade Unions, 8 5.]
incorporated bricklayers' unions,
unions, to wit, 3. SAME SYMPATHETIC STRIKES INTERFER- Unions No. 3 and No. 27, and of one stone ENCE WITH THIRD PERSONS. Union bricklayers and masons employed by
masons' union, to wit, Union No. 9. The a contractor on other buildings cannot legally plaintiffs also undertook to make each one strike because the contractor was working on a of the three unincorporated unions parties building on which work was being done by non
defendant. The Bricklayers' Union No. 27 union pointers employed by the owners of the building, as the organized laborers' right of
seems from the evidence not to have been coercion is limited to strikes on persons with concerned in the matters in dispute. For this whom the organization has a trade dispute. reason we shall not refer to it again except [Ed. Note. For cases in point, see vol. 10,
to show later on that there is no evidence Cent. Dig. Conspiracy, § 9; vol. 46, Cent. Dig. Trade Unions, 8 5.]
that it took part in the matters here in ques
tion. The individual defendants were one 4. TRADE UNIONS STRIKES INJUNCTION EVIDENCE.
Driscoll, the walking delegate of the BrickA bill to enjoin a labor union from inter- layers' Union No. 3, one Walsh, the walking fering with plaintiffs in the practice of their
delegate of the Stone Masons' Union No. 9, trade cannot be sustained, where it appears the interference was by individual delegates of the
and other persons who were officers of those union, and that the union and its members took two unions. no part in the strike.
It appears from the evidence that the trade 5. SAME · UNINCORPORATED ASSOCIATIONS
of brick and stone pointing is a trade which, ACTIONS AGAINST PARTIES. An unincorporated labor organization can
in the neighborhood of the city of Boston at not be made a party defendant to an action, any rate, has been carried on to some extent but, at law, if objection is taken, every member
as a separate trade for nearly if not quite must be joined as a defendant, and in equity, if the members are numerous, a number of mem
100 years. It further appears that there bers may be made parties as representatives of are now some 45 men engaged in that trade a class.
in the vicinity of that city.
The trade of a brick or stone pointer conAppeal from Superior Court, Suffolk Coun
sists in going over a building (generally when ty. Bill by Robert H. Pickett and others against
it is first erected) to clean it and to put a
finish on the mortar of the joints. Apparentone Walsh and others to enjoin defendants from conspiring to interfere with plaintiffsly in the city of Worcester, and to some ex.
tent in the city of Boston, this work of pointin pursuing their trade. From a decree for plaintiffs, defendants appeal Decree modi
ing is done by bricklayers and stone masons. fied.
The dispute which gave rise to the suit
now before us had its origin in a set of rules Fredk. W. Mansfield, for appellants. Elder adopted in January, 1905, by the Bricklay. & Whitman, for appellees.
ers' and Masons' International Union of
America, to which the two unions here in LORING, J. This suit comes before us question were subordinate unions. This set on an appeal from a final decree, where the of rules contained a provision that bricklayevidence was taken by a commissioner and ing masonry should consist inter alia) of where no findings of fact were made in the “all pointing and cleaning brick wall," and lower court.
that stone masonry should consist (inter The bill was brought to enjoin the defend- | alia) of the "cleaning and pointing of stone ants from combining and conspiring to inter- work." The practical working of the princifere with the plaintiffs in pursuing their ples of brick and stone masonry as defined trade of brick and stone pointers. The pur- in these rules was left to the subordinate pose of the bill as stated in the prayers for unions. relief was to enjoin the defendants (1) “from By the constitution, by-laws and rules of combining and conspiring in any way to com- order of the Bricklayers' Union No. 3, it is pel L. P. Soule & Son Company, or any other provided that members shall not accept emperson, firm or corporation, by force, threats, ployment "where a difficulty exists in conintimidation or coercion, to discharge the sequence of questions involving the rules complainants in the bill of complaint, to wit: wbich govern the Union", and that any mem-' ber violating a law of the union shall on con- layers' Union No. 3, came to the Ford Buildviction "be reprimanded, suspended or fined ing, for which the corporation of L. P. at the discretion of the union.” No similar Soule & Son Company were the general conprovision appears in the extract from the tractors, and found that the cleaning and constitution of the Stone Masons' Union pointing of that building was being done which was in evidence, but it is not a violent under a contract between the owners of the assumption from the action of the masons building and Robert H. Pickett, one of the and from the testimony of Walsh, the walk- plaintiffs here. They then went to a brick ing delegate of the Stone Masons' Union that building which was being erected by the the members of the Masons' Union stood on L. P. Soule & Son Company as contractors, the same footing as the members of the namely, a cold storage warehouse on EastBricklayers' Union in this respect.
ern avenue, where Driscoll notified the man In other words, the make-up of the two that the pointing at the Ford Building was unions was such that any member of a sub. being done by pointers. In consequence all the ordinate union (which had adopted a work- bricklayers employed by the L. P. Soule & ing rule containing in substance the provi. Son Company on the cold storage building, sions of the working rules of the Interna- 50 in all, being union men, struck work on tional Union as to cleaning and pointing build- that or the next day. The next day, Novemings) who continued to work on a job on
ber 14, Walsh went to a stone building which a pointer was at work was liable to be which was being erected by the same correprimanded, fined or suspended.
poration for the International Trust ComThis brings us to the action taken by the pany on the corner of Arch and Devonshire unions here in question.
streets, and told the workmen there of the There was an executive committee of the pointing on the Ford Building; whereupon two unions. On July 28, 1905, this execu- all the stone masons working there, 5 or 6 tive committee voted "that beginning Septem- in all, being union men, struck work. ber 18, 1905, no member of the bricklayers' This bill was filed on November 20, 1905. and masons' unions of Boston and vicinity, It seems to have come on for hearing will work on any building where the con- on December 5, 1905. As we have said, tractor will not agree to have the pointing the evidence was taken by a commissioner, done by bricklayers or masons.”
a final decree in favor of the plaintiffs on This action of the executive committee all three grounds was made on December was formally adopted by the Bricklayers' 11th, without any special findings of fact, and Union No. 3, and seems to have been in- the case is here on appeal from that decree. formally adopted by the Stone Masons' Union It appeared from the testimony of Parker No 9. In pursuance thereof the following F. Soule, an officer of the L. P. Soule & circular letter was issued: “The bricklay- Son Company, that it was cheaper to make ers' and masons' unions of Boston and vicini- a contract with pointers for the work of ty have voted that no bricklayer or mason pointing and cleaning than to employ stone will work for any firm or contractor who masons and bricklayers to do that work. will not employ bricklayers or masons to do It appeared from other evidence that the the pointing of brick, terra cotta and stone wages of a bricklayer or stone mason were masonry. This action will go into effect 55 cents an hour, while pointers are paid September 18, 1905.”
$3.00 a day of eight hours, or 3712 cents an In September, 1905, L. D. Willcutt & Son hour. It further appeared from Mr. Soule's as general contractors were erecting (among testimony that he preferred to give the work other buildings) a stone building on the to the pointers because in cleaning a buildcorner of Massachusetts avenue and Boyl- ing acid has to be used, and, if the acid is ston street in Boston. On the 18th day of
used to excess, stains are caused which in that month, Mr. L. D. Willcutt of that firm some instances it is impossible to "get out”; was notified that if he did not discharge the he did not think that the bricklayers and pointers who were working for his firm in stone masons were competent to use these pointing that building all the masons and acids. He preferred also to give the work bricklayers working for his firm on other to the pointers because the work which is buildings in Boston (all of whom were union done by the pointers visually is done by men) would strike. Thereupon he suspend-contract, in which case the general coned the work which was being done by the tractor who employs the pointers is repointers on the building on the corner of lieved from responsibility on account of acMassachusetts avenue and Boylston street. cidents which may occur because of the fact This evidence was admitted to show that that the work is done on a swinging stage, there was a general scheme that where at times at great heights. It also appeared pointing was given to any one besides union from the evidence that L. P. Soule & Son bricklayers and stone masons there would Company were not the only contractors who be a strike.
thought they got better work at a smaller On November 13, 1905, the defendant cost and with less liability by making a Walsh, the walking delegate of the Stone contract with stone pointers for the doing Masons' Union No. 9, and the defendant of this work than
than by employing stone Driscoll, the walking delegate of the Brick- masons and bricklayers to do it.
All this was explained to the walking dele- the plaintiff Robert H. Pickett was alone gate of the Bricklayers' Union here in ques- concerned, the first and second causes of tion, at an interview between Mr. Soule and action are alike. the walking delegate of that union held The second cause of action consists in the within two days of the strike. It also ap- effort of all the plaintiffs to be protected peared that at that interview the delegate from being discharged or not employed by told Mr. Soule that while it had been against the L. P. Soule & Son Company because the the rules of the union that any member defendants struck work for that corporation should take piece work, the taking of piece so long as that corporation worked on a work recently had been allowed; whereupon building on which Robert H. Pickett was Mr. Soule told him that "if he had any employed by the owners of that building. members of his union who were reliable Finally, the plaintiffs sought to be promen, whom we could have confidence enough tected against a strike by the defendants in to let a contract to, who would give prices in order to get the work of pointing for the as low, *
he would have no trouble members of their unions. in getting all the stone pointing there was No objections have been taken to the bill going." No offer to make a contract on ”
on the ground of multifariousness. We shall these terms was made, and on the evi- therefore consider all three causes of acdence it must be assumed that there was tion. nothing in this statement of the defendant We will consider first the last of the three Walsh.
causes of action. It further appeared from the evidence that The question, so far as this the third cause the brick and stone pointers of Boston ap- of action goes, apart from a question of fact plied to the Building Trades Council for a which we will deal with later, is whether charter. It is stated in the record of the the defendant unions have a right to strike Brickmasons' Union No. 3, that “the said for the purpose for which they struck; or, pointers about a year ago applied to the A. to put it more accurately and more narrowly, F. of L. for a charter, which was denied it is this: Is a union of bricklayers and them, the American Federation of Labor stone masons justified in striking to force taking the stand that brick and stone point- a contractor to employ them by the day to ing was a part of the bricklayers and do cleaning and pointing at higher wages masons trade.” On September 11, 1905, the ."
than pointers are paid, where the contractors Brickmasons' Union No. 3 voted to "file wish to make contracts with the pointers a protest to the B. T. C. against their grant- for such work to be done by the piece, being a charter to the brick and stone pointers cause they think they get better work at of Boston," and on September 18, it was vot. less cost with no liability for accidents, ed “that this committee [sic] send com- and where the pointers wish to make conmunication to B. T. C. requesting that tracts for that work with the contractors body not to grant a charter to the so-called on terms satisfactory to them? brick and stone pointers.” It was admitted In other words, we have to deal with one that the men engaged in the business of of the great and pressing questions growbrick and stone pointers were not qualified ing out of the powerful combinations, somefor the business of bricklayers and stone times of capital and sometimes of labor, masons.
which have been instituted in recent years It also appeared that at the interview where their actions come into conflict with between Driscoll and Mr. Willcutt, Mr. the interests of individuals. The combinaWillcutt told Driscoll that he did not be- tion in the case at bar is a combination of lieve that when there were 1,200 men in the workmen, and the conflict is between a launion and 30 pointers outside, all this fuss bor union on the one hand and several unwas being made to get the pointers' work organized laborers on the other hand. for the union men; that he thought it was It is only in recent years that these great "simply a question of dictation to us"; and and powerful combinations have made their on Mr. Willcutt's asking him (Driscoll) appearance, and the limits to which they "Do you really want it or do you want to may go in enforcing their demands are far drive the men out of business?" Driscoll from being settled. smiled and said: "That is a charitable It is settled however that laborers have way of looking at it.”
a right to organize as labor unions to proThere seem therefore to be three causes mote their welfare. of action upheld by the decree.
Further, there is no question of the genIn the first place, Robert H. Pickett, one eral right of a labor union to strike. of the plaintiffs, had a contract with the On the other hand it is settled that some owners of the Ford Building and was at strikes by a labor union are illegal. It was work under it when the defendants struck. held in Carew v. Rutherford, 106 Mass. 1, He seeks protection from a strike on L. P. 8 Am. Rep. 287, that a strike by the memSoule & Son Company to force the owners bers of labor unions was illegal when set of the Ford Building to give this work to on foot to force their employer to pay a fine the unions and to take it away from him. imposed upon him by the union of which Except for the fact of this contract in which he was not a member, for not giving the
union all his work. To the same effect see law, as between him and his fellow subjects, March V. Bricklayers' & Plasterers' Union to full freedom in disposing of his own labor No. 1 (Conn.) 63 Atl. 291. Again, it was or his own capital according to his own will. held in Plant v. Woods, 176 Mass. 492, 57 It follows that every other person is subN. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. ject to the correlative duty arising there330, that a labor union could not force other from, and is prohibited from any obstrucworkmen to join it by refusing to work if tion to the fullest exercise of this right workmen were employed who were not mem- which can be made compatible with the bers of that union. To the same effect see exercise of similar rights by others;" cited Erdman V. Mitchell, 207 Pa. 79, 56 Atl. by this court in Plant v. Woods, 176 Mass. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783; 492, 498, 57 N. E. 1011, 51 L. R. A. 339, 7G O'Brien v. People (111.) 75 N. E. 108; Loewe Am. St. Rep. 330. v. California State Federation of Labor We have now arrived at the point where (C. C.) 139 Fed. 71. And see in this connec- a labor union, being an organization brought tion Giblan v. National Amalgamated La- about by the exercise on the part of its bourers Union (1903] 2 K. B. 600.
members of the right of every citizen to When and for what end this power of pursue his calling as he thinks best is limcoercion and compulsion commonly known ited in what it can do by the existence of as a strike may be legally used is the ques- the same right in each and every other cittion which this case calls upon us to de- izen to pursue his and their calling as he cide. In the present state of the authorities or they think best. it becomes necessary to consider the general In addition to the limitation thus put on principles governing labor unions and strikes labor unions there is a fact which puts a by labor unions.
further limitation on what acts a labor The right of laborers to organize unions union can legally do. That is the increase and to utilize such organizations by in- of power which a combination of citizens stituting a strike is an exercise of the com- has over the individual citizen. Take for mon law right of every citizen to pursue example the power of a labor union to comhis calling, whether of labor or business, as pel by a strike compliance with its demands. he in his judgment thinks fit. It is pointed Speaking generally a strike to be successful out in Carew V. Rutherford, 106 Mass. 1, means not only coercion and compulsion but 14, 8 Am. Rep. 287, that in the earlier days coercion and compulsion which, for pracof the colony the government undertook to tical purposes, are irresistible. A successful control the conduct of labor and business strike by laborers means, in many if not to some extent, but that later this policy most cases, that for practical purposes the of regulation was abandoned and all citizens strikers have such a control of the labor were left free to pursue their calling, wheth- which the employer must have that he has er of labor. or business, as seemed to them to yield to their demands. A single indibest. This common law right was raiseđ vidual may well be left to take his chances a
in a struggle with another individual. But being incorporated in the Constitution of the in a struggle with a number of persons comcommonwealth. So far as the question now bined together to fight an individual, the before us goes it is of no consequence wheth- individual's chance is small, if it exists at er the right to pursue one's calling (wheth: all. It is plain that a strike by a combinaer it be of labor or of business) is a common tion of persons has a power of coercion law right or a constitutional right, since which an individual does not have. the violation of it here complained of is The result of this greater power of coercion on the part of individuals and not on the on the part of a combination of individuals part of the Legislature. What is of conse- is that what is lawful for an individual is quence here is that such a right exists. In not the test of what is lawful for a combinaarticle 1 of the Declaration of Rights it tion of individuals; or to state it in another is declared that “all men are born free way, there are things which it is lawful for and equal, and have certain natural, essen- an individual to do which it is not lawful tial, and unalienable rights; among which for a combination of individuals to do. Take may be reckoned the right of * *
for example the case put in Allen v. Flood quiring, possessing, and protecting proper- (1898] A. C. 1, 165, of a butler refusing to ty; in fine, that of seeking and obtaining renew a contract of services because the cook their safety and happiness." It is in the was personally distasteful to him, whereupon, exercise of this right that laborers can le- in order to secure the services of the butler, gally combine together in what are called the master refrains from re-engaging the cook labor unions.
whose term of service also had expired. We This right of one or more citizens to pur- have no doubt that it is within the legal sue his or their calling as he or they see fit rights of a single person to refuse to work is limited by the existence of the same right with another for the reason that the other in all other citizens. The right and the re- person is distasteful to him, or for any other sult are accurately stated by Sir William reason however arbitrary. But it is estabErle in his book on Trade Unions in these lished in this commonwealth that it is not words: "Every person has a right under the legal (even where he wishes to do so) for
to the dignity of a constitutional right by in