Brighetti v. Consolidated Rail Corp.
| Decision Date | 31 July 1985 |
| Citation | 479 N.E.2d 708,20 Mass.App.Ct. 192 |
| Parties | Robert BRIGHETTI v. CONSOLIDATED RAIL CORPORATION. |
| Court | Appeals Court of Massachusetts |
Paul F. Leavis, Boston, for plaintiff.
Michael A. Fitzhugh, Boston, for defendant.
Before PERRETTA, KAPLAN and DREBEN, JJ.
On September 29, 1976, the plaintiff Brighetti was injured when his foot and ankle were mashed by a rotating screw auger that was being used at the time to unload grain from a railroad car. The accident occurred at a siding owned by the defendant Consolidated Rail Corporation (Conrail), with an oral "lease" to G.D. Poultry, Inc. (Poultry), Brighetti's employer, to install and operate the auger. 1
After the plaintiff presented his proof and rested, the defendant chose to rest, and moved for a directed verdict essentially on the ground of insufficient evidence to go to the jury. The judge denied the motion and in that connection he indicated at sidebar that the doctrine of the Garwacki case was applicable. Young v. Garwacki, 380 Mass. 162, 168-171, 402 N.E.2d 1045 (1980). This is generally to the effect that a landlord has a duty of due care, accommodated to the circumstances, with respect to persons lawfully on the rented premises. The judge recited the instructions he intended to give the jury in the light of Garwacki. The parties had no significant objections to this statement.
Recalling the jury, the judge charged them in substance as he had said he would do (he added a consistent instruction suggested in part by the plaintiff). 2 By special verdict, the jury found that Conrail had been negligent and its negligence proximately caused the injuries and that the plaintiff was free of negligence and entitled to damages of $350,000. On the defendant's motion for judgment n.o.v. (renewing, in effect, the motion for a directed verdict) or, in the alternative, for a new trial, the judge granted judgment n.o.v. and denied a new trial. The plaintiff appeals. There is no question of law aside from that of the adequacy of the evidence, taken in a light most favorable to the plaintiff, to support the verdict under the law as received from the judge and accepted in substance by the parties. In that view we hold that the verdict should not have been interfered with. Nor is a new trial required.
After a synopsis of the proof, we shall recount the law as stated and charged by the judge and accepted by the parties, and then show that the evidence was sufficient thereunder.
1. The evidence. Poultry batched, blended, bagged, and sold mixed grains for use as animal feed. Since locating its plant in Middleborough in 1964, Poultry received much of its grain by railroad cars brought to the siding. This was behind and adjacent to Poultry's property and about four feet below it. A wall ran along the boundary between the two, creating a terrace effect. The siding was seventy-five or more feet in length, and in width comprised the track and narrow three-foot workspaces on either side. The workspace nearer the plant was flush to the wall.
Poultry received about two rail car deliveries of bulk grain a week, boxcars being used twice as often as hopper cars. Originally, Poultry used a conveyor belt to transfer the grain from the cars to the plant, but in 1968 it submitted to the (predecessor) railroad a plan for using, instead, a grain auger, that is, a rotating screw-like device resembling a meat grinder. The railroad suggested changes, and in response Poultry altered the design of the auger, lengthening it and adjusting its angle in relation to the ground.
As installed, the auger began at a point between the rails, several feet below ground level. It sloped upward toward the plant at an angle of 30? , emerging about halfway between the inner track and the wall. Then it passed through the wall to the grain mixing plant.
The auger was encased in a metal housing for most of its length, but was exposed at its end beneath the track to admit the grain from a parked hopper car, that is, a car with a square-shaped funnel at its base. Above the exposed auger, recessed in the ground, was a fixed metal funnel for channeling the content of the car to the screw blades. At the base of this fixed funnel was a metal grate or grid designed to pass grain but to screen out "oversize particles and people."
The auger was switched on and off by means of simple controls atop the boundary wall. It rotated at a speed of perhaps two hundred revolutions per minute. There was no reverse switch.
Poultry employees would instruct the rail car operators to "spot" hopper cars over the auger opening and these operators would do so. Poultry people unloaded the cars following a pattern as indicated. However, there was difficulty with boxcars having the usual side doors and no floor opening. Here a plywood board was used as a ramp to guide the grain from the side door to the funnel beneath the track. This was awkward and resulted in considerable spillage which made for tricky footing in the unloading area.
In late 1975 or early 1976, John Carlton, an owner and manager of Poultry, without consulting the railroad, cut a second opening, ten by twenty inches, in the auger housing just below the point at which the overhanging side door of a boxcar could be brought to rest. That point was in the inner workspace, where auger and housing protruded above the ground, so that this second opening was visible from the vicinity of the track. The housing, with the auger just below, was two inches above ground at the edge of the opening nearer the track, and twelve inches at the opposite edge nearer the wall. A boxcar could now be unloaded through a removable funnel leading from the side door through a grate or grid which Carlton had welded into the housing over the exposed portion of the auger.
When the new method of handling boxcar deliveries was tried out, the grain propelled by the auger tended to "bridge" or clog at the grate; this was due in part to the kinds of grain customarily shipped by boxcar. So, after the first or second tryout, Carlton removed the grate. This occurred some time before the defendant Conrail came in on April 1, 1976, as successor owner of the railroad. As some substitute for the grate, Carlton made a rectangular metal lid weighing ten to fifteen pounds with a short lip on each side. This was intended to be placed on the opening of the housing when the auger was not in use or was being used to unload a hopper car. Even after the grate was removed, grain still accumulated around the second opening during the unloading of boxcars, so that sometimes the auger at that point would be as much as six inches below the surface of the surrounding grain.
At 10 A.M., September 29, 1976, the plaintiff, one of Poultry's ten-man staff, was approached by Paul LaGraze, a fellow employee, and told that grain was not flowing properly out of a hopper car. The plaintiff went down to the near workspace, looked under the car, and saw that grain was bridged at the car's floor opening. He decided to go back to the plant to fetch a ninety-degree tool with which to reach under the car to loosen the grain. From a position facing the car he turned to his right toward the plant. His left foot slipped on an accumulation of wet grain around the second opening. In the same movement he sought to steady himself with his right foot, which encountered and perhaps dislodged the metal cover and plunged into the revolving auger. 3 There was a lapse of time until a worker reached the switch. The plaintiff was extricated by the use of an acetylene torch on the housing. His injury was severe and long lasting and disabled him permanently for his proper employment.
A qualified consulting engineer gave expert testimony, citing, among other sources, relevant standards promulgated by the American National Standards Institute, that the second opening was extremely hazardous, and aggravated by grain afoot and congestion of the workspace. It could readily have been made reasonably safe by devices such as a fixed cover, a welded grate, a fence or cage, or an "interlock" system to shut off power when the cover was dislodged.
2. The law governing this action. As noted, the judge stated his view of the law at the time of the motion for a directed verdict. Having denied the motion, the judge instructed the jury in consonance with that view. The parties on both occasions acquiesced in the substance of the law as thus declared. 4 So no question of the accuracy of these statements is before us. See notes 5 and 7 infra.
We paraphrase the judge's statements reflecting Garwacki. 5 A landlord must use reasonable care to see that, at the time of letting, the property is in reasonably safe condition and he must also act reasonably to maintain it in such condition. He is not an insurer, but must act as a reasonable person in all the circumstances. He must anticipate conditions, reasonably foreseeable, likely to cause injury to the tenant or others lawfully on the premises. However, he is not liable in negligence unless he knew or reasonably should have known of the defect which caused the injury and had a reasonable opportunity to repair it. His agent's knowledge unrelated to the agency is not imputed to the landlord.
Reflecting the older law (see Garwacki, 380 Mass. at 170, 402 N.E.2d 1045), the judge said that in considering whether a landlord was negligent in maintaining leased property, one should note that as lessor he gives up his right to enter upon the land; in the absence of an agreement, he can neither inspect for defects nor repair; and, without consent, he may not interfere with the tenant's personal property. 6
The judge went on to say that the relevant time period was from April 1, 1976, when Conrail became owner, to September 29, 1976, the date of the plaintiff's injury. 7
There was an addendum in the instructions...
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