Conroy v. Town of Clinton
| Decision Date | 03 March 1893 |
| Citation | 33 N.E. 525,158 Mass. 318 |
| Parties | CONROY v. INHABITANTS OF CLINTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jonathan Smith and William A. Gile, for plaintiff.
W.S.B Hopkins, Frank Bulkeley Smith, and Walter Perley Hall, for defendant.
The plaintiff is the widow of Anthony Conroy, and brings this action under St.1887, c. 270, § 2, for his death, he being killed on November 6, 1890, while laying pipe in the bottom of a sewer trench, which was being constructed by the defendant. The immediate cause of the death was the caving in of the walls of the trench. The declaration contains four counts. The first and third are based upon clause 1, § 1 St.1887, c. 270, and the second and fourth upon clause 2. The first and third differ only in this respect: that one alleges that Conroy was instantly killed, and the other that he died without conscious suffering. The same is true of the second and fourth counts. The defects "in the condition of the ways, works, or machinery," the first count alleges, "consisted in using decayed, rotten, unsafe, and unsuitable planks and timbers for bracing up the sides of the trench of said sewer; that the said planks and timbers used as aforesaid were placed so wide a distance apart on the sides of the trench of said sewers as to be totally inadequate and insufficient to sustain and keep in place the sides of the trench aforesaid; that at the time said Conroy was killed the bracing had been negligently and carelessly suffered to remain in place a long time, to wit, the space of twenty-four hours, without being tightened or fixed, or made secure, and in consequence thereof had become loose, unsafe, and utterly inadequate to sustain and keep in place the sides of the said trench." The second count alleges that the negligence of the superintendent "consisted in directing and ordering said Anthony Conroy to work at the bottom of a trench of a certain sewer," etc., and describes the condition of the trench as in the first count. At the close of the evidence the presiding judge required the plaintiff to elect upon which counts she would proceed, to which the plaintiff excepted. She then elected to proceed upon the first and third counts. The judge thereupon ruled that the plaintiff had failed to make out her case, and directed a verdict for the defendant. The case comes before us on the plaintiff's exceptions to these rulings and directions, and upon a report of the evidence.
It is a question not free from difficulty whether this case comes within clause 1, § 1, St.1887, c. 270. The language is "By reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer." In Howe v. Finch, 17 Q.B.Div. 187, it was held that the statute did not apply to ways or works in process of construction. In that case the plaintiff was injured by the fall of a wall of a building in process of construction, which had never been used in the defendant's business though it was intended to be used when finished. It was held that the case was not within the statute. Smith, J., said, after citing the language of the statute: "Does that mean partly made ways, etc., which may be very insecure when in process of construction?" ...
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