Daily v. Fiberloid Co.
| Decision Date | 27 June 1904 |
| Citation | 186 Mass. 318,71 N.E. 554 |
| Parties | DAILY v. FIBERLOID CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. E. Burke and J. P. Sweeney, for plaintiff.
W. I Badger, Wm. H. Hitchcock, and Chester M. Pratt, for defendant.
This is an action begun in the superior court for personal injuries sustained by the plaintiff, while in the defendant's employ, on April 12, 1903. The declaration contained three counts; the first and second under the Rev. Laws, c. 106, § 71, subds. 1, 2, and the third at common law. At the close of the plaintiff's evidence a verdict was directed for the defendant, and the case is before us on the plaintiff's exceptions.
The plaintiff had been in the employ of the defendant for about 12 years as a night watchman and fireman. He worked from 6 o'clock in the evening until half past 6 the next morning. He was required to make his rounds as watchman and to attend to the fires under three boilers. The floor of the boiler room was about three feet below the surface of the ground. The plaintiff was required to remove the ashes from under the boilers to a place in the yard outside the boiler room. The ashes were wheeled in an iron barrow from the floor of the boiler room up an inclined runway and through a doorway to the yard. There was a short flight of steps from the floor of the boiler room to the doorway. The runway was about 15 feet long and about 13 inches wide. It was made of two pieces of plank that were nailed together, and it was beveled on the edge that rested on the floor of the boiler room. It was made in the carpenter's shop of the defendant, and had been in use about three months at the time of the accident. About a month before the accident this runway had become warped and twisted, so that only one corner of it rested on the floor and the plaintiff was accustomed to trig up the other corner on the left side of the runway, so that it might have an even bearing on the floor, using for this purpose a piece of joist which was beveled in the shape of a wedge. When the runway was not in use it stood in a corner of the boiler room, and the wedge was usually placed on a pile of coal. The plaintiff had wheeled out ashes from the place where he was at work for two or three years before the accident. The accident happened about 5 o'clock on Sunday morning, and during the night before the plaintiff had wheeled out over the runway eight or nine loads of ashes. When he was wheeling another load, and when about half way up the incline, the runway canted to the left, and he was thrown to the floor and injured.
The plaintiff testified that, with the trig in, the plank was firm, and with it out the plank was rickety; that he knew it was necessary to have the trig in. And yet, when asked whether the trig was in when he started up the plank, his answer was, 'I suppose it was, because I generally looked every barrel.' And he puts it no higher than that. We are of opinion that, as the plaintiff was a man of experience and knew fully the condition of the runway,...
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