Doherty v. Paul's For Tires

• Decision Date: 26 May 1943
• Citation: 49 N.E.2d 430,314 Mass. 83
• Parties: WALTER DOHERTY v. PAUL'S FOR TIRES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 83

49 N.E.2d 430

WALTER DOHERTY v. PAUL'S FOR TIRES, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1943

May 10, 1943.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Negligence Employer's liability: place of work assumption of risk. Evidence, Matter of common knowledge.

In an action against an employer, not a subscriber under the workmen's compensation act, for personal injuries sustained when the plaintiff, an employee working in the defendant's store was struck by a tire which came off one of several piles of tires, a finding of negligence of the defendant was not warranted by testimony of the plaintiff that when he began his employment on the morning of the day of the accident he observed that the piles were generally about five feet high and that at the time of the accident the height of the pile in question had been increased to about seven feet, without evidence that the increase constituted a hazard beyond those incidental to the conditions in the store which were obvious to the plaintiff when his employment began.

It was not a matter of common knowledge that increasing the height of one of several piles of tires in a store from about five feet to about seven feet constituted a hazard to one working around the piles beyond those incidental to the conditions obviously existing in the store before the pile was raised.

TORT. Writ in the Superior Court dated June 22, 1938. The action was tried before Good, J.

W. F. Neary, for the plaintiff, submitted a brief. No argument nor brief for the defendant.

FIELD, C.J. This is an action of tort brought in the Superior Court to recover compensation for personal injuries sustained by the plaintiff while working for the defendant by reason of the alleged negligence of "the defendant, its servants, agents, or employees" in failing to provide him a safe place in which to work. There was a verdict of the jury for the plaintiff, but under leave reserved a verdict was entered for the defendant. The plaintiff excepted.

There was no error. It was admitted that the defendant was not insured under the workmen's compensation law. There was testimony by the plaintiff tending to show these facts: The plaintiff was employed by the defendant on the day of the accident to do general work in the defendant's store. He began work at eight o'clock in the morning, and the accident occurred at about four o'clock in the afternoon. The store was about fifty feet wide and one hundred feet long. At the front of the store an office was partitioned off and in it was a "regrooving machine." The rest of the store consisted of a large room containing piles of tires of various heights with spaces between the piles. There was an aisle ten feet wide through the middle of the store from back to front. The plaintiff's "first work was to sweep the floor around the front end." He was "shown how to regroove tires." When he was rolling a tire in the aisle from the back of the store to the office for the purpose of regrooving it, a tire came off a pile of tires at his right, struck the plaintiff and injured him. This "pile of tires was about six and one half or seven feet high massed together loosely and irregular and overlapping. Some ones on the top were overlapping each other, loosely piled. When he first started in the morning, there were less tires in the pile and during the day more tires came in and they put them on top. He did not put any tires there himself during the day." This pile of tires was three and one half or four feet away from the plaintiff as he rolled the tire along the aisle. When "the plaintiff went to work he observed that the tires in the area where the accident occurred were piled five to five and one half feet high, and that they were piled loosely and overlapping, and that they were piled in a similar manner at the time of...