Cleary v. Cavanaugh

• Decision Date: 23 November 1914
• Citation: 219 Mass. 281,106 N.E. 998
• Parties: CLEARY v. CAVANAUGH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 281

106 N.E. 998

CLEARY v. CAVANAUGH et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 23, 1914

COUNSEL

Wm S. Woods, of Taunton, for plaintiff.

Fredk. J. Smith, of Taunton, for defendants.

OPINION

LORING J.

1. The jury were warranted in finding that the defendants had invited the plaintiff to use the elevator as he was using it at the time of the accident. There was evidence that he had been delivering hay at the stable for several years; that on earlier occasions he had ridden on the elevator in the same way when (as we construe the bill of exceptions) either one of the defendants, or Bills, was standing on the floor at the time and did not object. One of the defendants testified that Bills was in charge of the stable in the absence of the defendants. In addition there was evidence that on the occasion in question, when the plaintiff and Wilbur were going up on the elevator with the hay, Wilbur said to Bills 'All right, ain't it, Bills?' and Bills said 'Yes; go ahead.'

2. The jury were warranted in finding that the falling of the elevator was caused by the negligence of the defendants. They could have found that the elevator fell when subjected to ordinary use. That fact of itself brought the case within the rule of res ipsa loquitur, as to which see Minihan v Boston Elev. Ry., 197 Mass. 367, 83 N.E. 871. For cases somewhat like the case at bar see White v. Boston & Albany R. R., 144 Mass. 404, 11 N.E. 552; Minihan v Boston Elev. Ry., ubi supra; Sullivan v. Reed Foundry Co., 207 Mass. 280, 93 N.E. 576. The plaintiff however went further and undertook to show that the cable broke because it had rusted out, and that no inspection of it had been made for two years and nine months before the accident. So far as the cables were concerned a case of negligence was made out in both ways; and the plaintiff had a right to rely on the doctrine of res ipsa loquitur if the jury thought that he was unsuccessful in making out the case of specific negligence which he undertook to make out. Golden v. Mannex, 214 Mass. 502, 101 N.E. 1081. The plaintiff however did not undertake to make out a case of specific negligence as to why the safety device (which on the plaintiff's evidence appeared to have been a part of the elevator) did not work at the time of the accident. Indeed there is nothing in the bill of exceptions which shows how this safety device was constructed, or how it was intended to work. All that appears in the bill of exceptions is that there was a safety device; that it was seen in August next before the accident (which happened in January), by the plumber, who testified that he was the only person in Taunton who repaired elevators. The plumber (who was a witness called by the plaintiff) testified that he did not repair the safety device in August when he saw it, but that he saw it then and it was working all right at that time. He also testified that when he examined the elevator after the accident, so far as he could see the safety device was 'solid.' In the case at bar there was no...