Carey v. Boston & M.R.r.

• Decision Date: 02 March 1893
• Parties: CAREY v. BOSTON & M.R.R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 228

33 N.E. 512

CAREY v. BOSTON & M.R.R.

Supreme Judicial Court of Massachusetts, Worcester.

March 2, 1893

Plaintiff was in defendant's employ as a section hand, and was turning the crank of a hand car which was propelled by two cranks; the other crank being turned by a fellow workman. Plaintiff's clothing was caught by the crank, causing him to be thrown out and injured. The iron screw bolt that ran through the wooden handle that plaintiff was turning had a threaded screw cut on the end, which stuck out beyond the nut, at the outer end of the wooden handle about an inch; and after the accident a piece of plaintiff's coat was found on the projecting end of the threaded bolt, twisted around the handle. The rulings asked by defendant, and refused by the court, were as follows "(1)There is no evidence to warrant a verdict for the plaintiff. (2) Whatever defect there was in the hand car was obvious, and as apparent to the plaintiff as to the defendant. (3) Upon the pleadings and proof in this case, the verdict should be for the defendant. (4) There is no evidence that the projecting bolt or screw described by Shepard was a defect. So far as appears, it was a method of construction which the defendant had a right to adopt, even if it was more dangerous than some other method would be." The complaint, omitting formal parts, was as follows: "That heretofore, to wit, on or about the 15th day of August, 1889 the plaintiff was in the employment and service of the defendant, as a section hand, so called. That upon said day of August the plaintiff, while in the proper performance of said employment, was engaged, together with other fellow servants of the defendant, in propelling a hand car upon the tracks of the defendant, in West Boylston, in said Worcester by means of a crank attached to, and a part of, said car. That while so engaged, and while in the exercise of due and proper care, a pin or bolt which formed part of the handle of said crank, and also other parts and attachments of said handle, became detached from said handle, for the reason that said pin or bolt, and said other parts and attachments of said handle, were insufficient and unfit for the uses to which they had been applied. That directly said pin or bolt and said other attachments and parts of said handle became detached, as aforesaid, said pin or bolt became entangled in the clothing of the plaintiff, and he was thrown violently out of, and in front of, said car, and said car passed over the body of the plaintiff. That the plaintiff thereby sustained great and permanent injuries, including fracture of the right leg, and nose, and other painful injuries upon his head, limbs, and body. He has since suffered great pain thereby, and has been put to much expense for medicine and medical attendance, and has been rendered entirely unfit for any kind of employment. That said pin or bolt, and said other parts and attachments, were old, insecure, and unfit for the uses to which they had been put. That said injuries were sustained by reason of the negligence of the defendant, in negligently permitting an unsafe and improper pin or bolt, and unsafe and improper other parts and attachments, to be used upon a car upon which the plaintiff was employed by the defendant.

COUNSEL

William A. Gile and Edward J. McMahon, for plaintiff.

Frank P. Goulding, for defendant.

OPINION

LATHROP J.

In the opinion of a majority of the court, the instructions requested by the defendant should have been given. The plaintiff had been in the employ of the defendant for several years as a section hand. The hand car on which he was injured had been in use for several days. While there is evidence that some other hand cars had the end of the bolt welded, and others had the nut at the end of the handle, there is no evidence...