Coulombe v. Horne Coal Co.

• Decision Date: 06 April 1931
• Parties: COULOMBE v. HORNE COAL CO. THOMAS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 226

175 N.E. 631

COULOMBE

v.HORNE COAL CO.

THOMAS

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 1931.

Exceptions from Superior Court, Middlesex County; Raoul H. Beaudreau, Judge.

Actions by Charles Coulombe, administrator, and Mae S. Thomas, administratrix, against the Horne Coal Company. Verdicts for plaintiffs, and plaintiffs and defendant bring exceptions.

Judgment for defendant.M. G. Rogers and N. Peikes, both of Lowell, for plaintiffs.

J. M. Maloney, of Boston, and Max J. Cohen, of Lowell, for defendant.

WAIT, J.

These are actions under G. L. c. 229, § 5, in the amended form appearing in St. 1925, c. 346, § 9, which makes liable in damages ‘a person who by his negligence or by his wilful, wanton or reckless act, or by the negligence or wilful, wanton or reckless act of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service.’ They are before us upon bills of exceptions of the plaintiffs and of the defendant after verdicts for the plaintiffs. It is conceded that no wilful, wanton or reckless conduct contributed to the injury; and that the defendant is not liable if the deceased persons were employees of the defendant or volunteers in assisting a servant of the defendant to move the conveyor which communicated the electric shock that killed them.

The uncontradicted evidence introduced by the plaintiffs was, in substance, as follows: Coulombe and Thomas on Saturday, July 28, 1928, were employed by one Pallotta as drivers of trucks; and had received orders that, after delivering their loads of crushed stone at the destination in Lowell, they should proceed to the coal yard of the defendant, obtain loads of coal and take them to Pallotta at Dracut. Accordingly, between half past nine and ten o'clock in the forenoon, they arrived at the coal yard where they found no one at hand to serve them; but, on their calling, one Heald, an employee of the defendant, came toward them, and asked them to come and help him move the conveyor (a machine used in loading coal). They went with him. Coulombe and Thomas grasped the wheels, Heald stood by the foot. The three moved the conveyor, and fell dead. This conveyor was made of iron. It was twenty-one feet long, weighed about fifteen hundred pounds, and was mounted on two wheels. An endless rubber belt with transverse rubber cleats was moved by endless chains driven by electricity transmitted from a main through an armored cable from plug-in boxes distributed about the coal yard to a switch box in the iron frame of the conveyor. The conveyor had been used that morning in loading four trucks from a coal pile in the yard; and the supervisor of receipt and delivery of coal, whose duty it was to care for it, finding it so situated that the cable was extended to nearly its full length, had forbidden Heald, who attended to loading, to move it further from the plug-in box, lest the strain should pull out the plug and delay work. Nothing in its working had indicated any defect in conveyor or wiring that morning. It had been in use for about ten years, without complaint. It had been inspected two months before the accident by state inspectors who made no report of any defect. The supervisor could not state when he had last examined it. He had put a rope upon it to hold up the cable so that it should not chafe upon the sharp edges of the switch box. This rope had become somewhat worn. After the accident, examination showed a cut through the insullation of a wire between the cable and the switch gear operating the endless cable, near the edge of the switch box. Electricity passing from this wire to the iron box and iron conveyor and then through the bodies of the men to the moist ground was, undoubtedly, the cause of their deaths.

There was no evidence of express authority to Heald to ask assistance of the deceased teamsters, and none of any practice or custom for waiting teamsters, not employed by the defendant, to assist the defendant's employees in the loading of their teams or in the handling of loading appliances. Heald at the time was the only one of the defendant's employees on hand for loading.

The defendant excepts to certain rulings upon evidence, to the refusal to direct verdicts for the defendant, to certain refusals to give instructions requested, and to a portion of the charge. We find no error in the rulings upon evidence.

The father of Coulombe was riding with him upon his truck and was the only living witness to the accident. He was allowed to testify that Heald requested Coulombe and Thomas to help him move the conveyor. This evidence was competent to explain the conduct of the two drivers and to show what took place, even if Heald was without authority to extend the invitation. No request was made to confine its application. No good exception lies to the general admission of evidence which is competent, responsive and material in any aspect of the case, unless a request be made and refused to confine it to its technical bearing. Irwin v. Worcester Paper Box Co., 246 Mass. 453, 141 N. E. 286;Ferris v. Ray Taxi Service Co., 259 Mass. 401, 404, 156 N. E. 538.

The evidence of the expert Lawrence that the machine was a dangerous one to have in operation, his opinion and the reasons for it were not incompetent on the ground contended for by the defendant that he was passing upon the question for the jury. In matters where technical details complicated machinery or forces not generally understood by the...