Daley v. American Printing Co.

• Decision Date: 07 January 1891
• Citation: 26 N.E. 135,152 Mass. 581
• Parties: DALY v. AMERICAN PRINTING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 581

26 N.E. 135

DALY v. AMERICAN PRINTING CO.

Supreme Judicial Court of Massachusetts, Bristol.

January 7, 1891

COUNSEL J.W. Cummings and E. Higginson, for plaintiff.

Jennings & Brayton and J. Lowell, Jr., for defendant.

OPINION

C ALLEN, J.

From reading the statement of the evidence in the bill of exceptions, it would seem that a verdict for the defendant would have been more satisfactory, but we are unable to say as a matter of law, that this was required. It is stated as a fact-free from controversy that the elevator was used by anybody who had occasion to go from the basement to a floor above, or vice versa; and there was some evidence tending to show that there was nobody to take charge of it; that any of the men used it as they had occasion; that the belt by which it was operated was liable to come off rather often; that it had done so shortly before the accident, when Anderson, one of the plaintiff's fellow-servants, helped the plaintiff to put it on, and did so by mounting the hogshead; that the hogshead had been there for eight years; that there were no rules posted up forbidding the men to put on the belt when it came off; that, for a number of years previously, various different workmen had been, more or less, in the habit of putting it on when it came off; that Kelly had put it on many times, by getting up onto the hogshead; that Anderson had put it on five or six times, and Manual once or more times; that three other men had been discharged by Butterworth for putting on belts; and that O'Hare had tried to put the belt on, and Grimes also, the latter being unable to say how many times. Some of the men the plaintiff among others, testified that they never had been told not to put the belt on. There was no pretense of any rules or instructions to the men as to the proper mode of putting it on, or as to the proper place to stand while doing it. The jury took a view of the premises, and had an opportunity to judge for themselves whether one who was trying to put the belt on might, without negligence, make the attempt from the top of the hogshead. Looking at the testimony in the light most favorable to the plaintiff, we cannot on exceptions say as matter of law that there was no evidence at all upon which the verdict may stand; nor that it was not within the plaintiff's province to put on the belt when it got off, if he had occasion to use the elevator; nor that at the time of...