Boyle v. Columbian Fireproofing Co.

• Decision Date: 02 September 1902
• Citation: Boyle v. Columbian Fireproofing Co., 182 Mass. 93, 64 N.E. 726 (Mass. 1902)
• Parties: BOYLE v. COLUMBIAN FIREPROOFING CO. MURPHY v. SAME. DUNCAN v. SAME.
• Court: Supreme Judicial Court of Massachusetts

182 Mass. 93

64 N.E. 726

BOYLE

v.COLUMBIAN FIREPROOFING CO.

MURPHY

v.SAME.

DUNCAN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 2, 1902.

Exceptions from superior court, Suffolk county; J. B. Richardson, Judge.

Actions by Daniel T. Boyle, Francis P. Murphy, and John H. Duncan, administrators, against the Columbian Fireproofing Company for the death of their intestates. Verdicts for plaintiffs, and defendant brings exceptions. Overruled.James E. Cotter, Thomas F. McAnarney, and E. D. Whitford, for plaintiffs.

Charles W. Bartlett and Elbridge R. Anderson, for defendant.

LORING, J.

These were three actions brought to recover damage for the death and conscious suffering of three employés of the defendant. It appeared that the defendant was one of several contractors engaged in the construction of a building in the city of Boston. The defendant's portion of the work consisted in putting in the fireproofing materials. The plaintiff's intestates were injured by the falling of a material hoist on which they were coming down from the eighth story shortly after 12 o'clock, noon, to eat their dinners. It appeared that the hoist was erected by the defendant to carry up material used by it in constructing the building. It was an open platform, on which were two uprights, connected at the top by cross pieces, through which was a kingbolt set up by a nut underneath. The kingbolt ended in an eye, in which was an iron wire cable. The cable was passed through the eye twice, and was fastened by two half hitches. At the time of the accident, the cable went over a sheave fastened to a cathead in the ninth tier of beams, which tier of beams made the roof. The cable in question was a new one, bought when the cathead was shifted from the sixth to the ninth tier of beams, within two weeks before the accident, because the cable previously used was not long enough for the hoist with the cathead in its new location. The standing part of the wire rope parted near the eyebolt when the hoist was between the eighth and seventh stories, and the hoist fell to the bottom, a distance of over 100 feet.

There was evidence from which the jury were justified in finding that the defendant had been negligent in fastening the wire rope to the head piece of the hoist in two respects: First, in hammering the wire rope in making the turns through the eye, and thereby injuring the metal, and weakening the strength of the rope; and, secondly, in not putting a thimble in the eye over which the rope would pass, and thus protecting the wire from wearing on the eyebolt and on itself. In that connection there was also evidence that the lack of a thimble had been called to the attention of the defendant's superintendent, and that he had promised to have one put on.

The record consists of 108 pages. The defendant took 7 exceptions to the introduction of evidence, made 23 requests for rulings, and excepted to over 2 pages of the judge's charge. Under these circumstances, we shall discuss the points made in its brief, adn not otherwise deal with the particular exceptions.

The most important question raised by the defendant corporation is whether it owed to the intestates the duty of using due care to have the hoist in a safe condition on the one hand, or whether, on the other hand, the intestates took the hoist as they found it. It appeared that the defendant had put up three signs,-two on the upright on which the hoist ran (one in the basement and the other up one flight), and the third on the head of the hoist itself. These signs were ‘Dangerous. Keep out.’ There was also evidence that the general manager of the defendant corporation had adopted a rule forbidding men to ride upon the hoists, and that signs to that effect should be posted on them, and that this rule had been communicated by him to Taylor, who was the defendant's superintendent of the work at the building in question. No ladders had been put in the building by the defendant corporation, but there were two sets of ladders there, put in by other contractors, and the defendant's superintendent testified that he expected the defendant's employés to use them. The defendant also put in evidence that its employés, including the three in question, had been warned by Taylor, at some time previous to the accident, not to ride on the hoist, and that Duncan had been discharged for so doing, and been taken back on his promising not to do so in future. On the other hand, there was evidence that Taylor himself rode up and down on the hoist every day he was there; that Henry, who was in charge when Taylor was absent, did the same thing; that Taylor was absent on the day of the accident, and Henry was one of the persons on the hoist when it fell at the time in question; and, lastly, that the employés had been told, both by Taylor and Henry, to use the hoist in place of the ladders, because it saved time, and that the hoist was used by the men continually in the presence of each of them.

The principal contention made by the defendant is that, under the notices which were posted, and which the intestates must have seen if they had exercised due care, they had no right on the hoist at the time in question, and took the hoist as they found it. The presiding judge left it to the jury to decide, in substance, whether the notices had been so openly disregarded by the superintendent, Taylor, and acting superintendent, Henry, and by others in their presence, as to have become a dead letter, and that if they found that the defendant, or its officers or agents, knew that its employés commonly disregarded the notice, and openly rode upon the hoist in the presence and with the sanction of the defendant's representatives, this would justify them in finding that it was done by invitation.

We are of the opinion that the instruction was right. The notice in question, if it was addressed to employés at all, was one forbidding employés to use the hoist at all, and not a notice like that in question in McNee v. Trolly Track Co., 170 Mass. 283, 49 N. E. 437, stating the terms on which they could ride. In case of such a notice, the continual and open violation of the notice is evidence from which the jury may find that it is no longer in force, and that it has been abandoned. Sweetland v. Railroad Co., 177 Mass. 574, 59 N. E. 443,51 L. R. A. 783. The business in which the intestates were employed by the defendant took them to the different stories of the building, and if the elevator was commonly and openly used by the employés in the presence of the superintendent and acting superintendent in going to and coming from the places where they were at work, the jury could find that they had been impliedly invited to use it for that purpose. Hanlon v. Thompson, 167 Mass. 190, 45 N. E. 88. The defendant relies on the testimony of Taylor that at some time previous to the accident Duncan had been discharged for riding on the hoist, and that all the employés had been warned not to do so. Apart from the fact that it does not appear when these two occurrences took place, the jury had a right to disbelieve this testimony.

The other exceptions may be disposed of shortly.

The objection made by the defendant to the question put to Bridget Shea, asking if Griffin, one of the intestates, said anything about his father, is that it was hearsay. But under St. 1898, c. 535, that is not necessarily an objection.

The next objection is to testimony that the hoist was used by the superintendent and acting superintendent, and by other workmen riding with them, as a means of access to the different parts of the building. This was some evidence of an implied invitation by the defendant, whose representatives the superintendent and acting superintendent were, to use the hoist as a means of access to the different parts of the building. The witness in question was allowed to testify further that the foreman also used the hoist in the same way, and that he had often seen other workmen riding with the foreman. If it was a common practice for workmen to use the hoist in this way, the jury might infer that it was known to the corporation; if so, it was evidence of an invitation.

The mother of one of the intestates testified that her son, the intestate, said to her 10 days before the accident: ‘Mother, don't feel troubled; I will help you all I can. I will see to send you money every two weeks.’...