Conti v. Brockton Ice & Coal Co.

• Decision Date: 30 June 1936
• Parties: CONTI v. BROCKTON ICE & COAL CO. SAME v. MINNEHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 15

2 N.E.2d 1015

CONTI v. BROCKTON ICE & COAL CO.

SAME v. MINNEHAN.

Supreme Judicial Court of Massachusetts, Plymouth.

June 30, 1936

Exceptions from Superiod Court, Plymouth County; Donahue, Judge.

Actions of tort by Dominic Conti, administrator, against the Brockton Ice & Coal Company, and against George W. Minnehan. To review directed verdicts for defendants, plaintiff brings exceptions.

Exceptions overruled.

G. L Wainwright, of Boston, for plaintiff.

E. R Langenbach and S. P. Sears, both of Boston, for defendants.

LUMMUS, Justice.

There was evidence tending to prove the following facts: The defendant Minnehan, at the time in question, was acting within the scope of his employment by the defendant corporation in operating a motortruck which had a closed cab with a window in the rear. The plaintiff's intestate acting rightfully under a business arrangement between his father and the defendant corporation, went with his brother to the ice house of the defendant corporation to get a cake of ice which he intended to take home in a wheelbarrow. He got up on a loading platform, about eight feet by twelve feet in size and elevated four feet or more above the ground, to which ran from the ice house a slippery inclined wooden runway down which cakes of ice could be pushed to the platform and thence loaded into vehicles. He carried a sharp pointed ice pick or pike about six feet long. The defendant Minnehan backed his empty truck a distance of thirty feet to the platform, for the purpose of loading the truck with ice. The evidence is contradictory as to what then happened. Both Minnehan and the brother, already mentioned, who was waiting at a distance of thirty feet or more from the platform, where he could hear but could not see, agree that the throat of the plaintiff's intestate was cut by the ice pick, and that he cried, ‘ Help me!’ It is not disputed that death resulted from the injury.

The theory of the case most favorable to the plaintiff, which is open under the pleadings, is that Minnehan, in backing the truck, ran forcibly into the platform, and shook it, causing the plaintiff's intestate, who was on the platform, to fall on the ice pick. Minnehan gives no support to this theory, but the brother, although admitting that he did not really see the occurrence, testified that ‘ the truck hit the platform hard and shook the platform; that when the platform shook, he heard his brother [the plaintiff's intestate] say ‘ Help me, boys'.’ Beyond that, the brother gave no material evidence.

Minnehan, on the contrary, testified that when he started to back he looked through the window and around the side of the cab; that he could see the platform; that there was nobody on the platform that he could see when he started to back; that he did not back into the platform, but stopped short of it; that when he got off the truck the plaintiff's intestate was on the platform, standing with ‘ one leg behind and one leg on the side of a cake of ice’ ; and that later the plaintiff's intestate walked on the runway, stumbled, and cut his throat on the ice pick.

Whether the plaintiff's intestate found a cake of ice on the platform, or pushed one down from the ice house, does not appear. If the latter, it may well be that he was not on the platform when Minnehan started to back the truck, and that Minnehan...