Engel v. Boston Ice Co.
| Decision Date | 03 November 1936 |
| Parties | ENGEL v. BOSTON ICE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Suffolk County; Sisk, Judge.
Action of tort by Richard F. Engel, by next friend, against the Boston Ice Company. On report from the Superior Court where a verdict had been ordered for the defendant.
New trial ordered.
A. W. Rockwood and R. B. Perkins, both of Boston for plaintiff.
W. I Badger and D. W. Kelley, both of Boston, for defendant.
This is an action of tort brought by a minor by his next friend to recover compensation for personal injuries sustained by him. The trial judge, subject to the plaintiff's exception directed a verdict for the defendants. At the request of the plaintiff he reported the case for the determination of this court upon the question whether the plaintiff should have been allowed to go to the jury either upon all the evidence in the case or upon such evidence ‘ taken together with such of the testimony as was wrongfully * * * excluded or struck out by * * * [him] subject to the plaintiff's exceptions.’ By the terms of the report ‘ No issue as to pleadings is involved in the questions raised’ therein.
The following facts were admitted or could have been found on the evidence: While the plaintiff was rightfully on the defendant's premises engaged in painting along the rails on which ran an electric crane ‘ then under the control of and being operated by the defendant ice company through its servants, agents or employees,’ his left hand was injured by a wheel of the crane. The plaintiff was in the employ of his father in doing the painting. The father was a subcontractor for such painting under an independent contractor having a contract with the defendant for the construction of an ice refrigerating plant, which at the time of the accident was ‘ in the final stages of completion.’ The general contractor told the plaintiff's employer that the defendant would not accept the job unless the rails were painted. The plaintiff's employer went to the plant with the plaintiff and another painter to do the painting, and saw that the plant was in operation. The employer talked, as he testified with the man in charge of the machinery,' who was, ‘ as he understood, the engineer of the plant,’ about the danger of doing the painting while the plant was in operation. (This ‘ engineer,’ however, testified that he was a ‘ stationary engineer’ ‘ employed by the defendant in conducting its business).’ The plaintiff's employer also talked with a crane operator about the danger of doing the painting while a crane was in operation. The employer received from each of these persons some assurance of protection to the painters and thereupon directed them to go ahead with the work.
The plant was one hundred and fifty or one hundred and sixty feet long. Two overhead tracks for electric cranes extended the entire length of the plant. Each track consisted of two metal rails, four or five inches high, twenty or thirty feet apart and ten or twelve feet above the ground, resting on heavy beams running in the same direction and supported by posts about fifteen feet apart. The cranes consisted of wheels ‘ something like railroad car wheels with two flanges instead of one,’ running on two rails and connected by a bar supporting an electric motor to furnish power to move the crane and a hoisting apparatus from which boxes containing water or ice were suspended. A crane is controlled by an operator who walks along on the ground with the crane and ‘ in case anything happens he pulls some-thing and the crane stops right away.’
The plaintiff testified to the circumstances of the accident in substance as follows: He was working at one end of the track which was nearer to the office and machinery of the plant, hereinafter referred to as the plant. When he began working the crane was at the other end of the track. The plaintiff was standing with his back to the crane on a stepladder outside the tracks on the side nearer the plant, painting with his right hand that side of the rail nearest the plant, and holding on to the top of the rail with his left hand. The stepladder ‘ came up within 3 feet of the bottom of the track.’ While the plaintiff was so engaged the crane came along the track and one of its wheels ran upon and injured the plaintiff's left hand. The crane operator stopped the crane ‘ immediately and then backed it up to get it off * * * [the plaintiff's] hand.’ From the testimony of other witnesses it could have been found that the crane operator, as he walked along the ground with the crane, though his view of the plaintiff was obstructed by the boxes suspended from the crane, could have seen the plaintiff on the stepladder ‘ as far as his chest,’ but there was no evidence that he could have seen the position of the plaintiff's left hand. Other evidence is referred to later.
First. The direction of a verdict for the defendant on the evidence in the case considered without reference to the evidence excluded or struck out by the trial judge subject to the exceptions of the plaintiff was error.
The plaintiff does not contend that the defendant's machinery or structures were defective. Liability of the defendant to the plaintiff, if any, rests upon negligence of the defendant or its employees in operating the electric crane. The defendant contends, however, that the plaintiff assumed the risk of injury from such operation and that there was no evidence of negligence of the defendant or its employees. There is no contention that the liability of the defendant is affected by the Workmen's Compensation Law. G.L.(Ter.Ed.) c. 152, §§ 18, 66.
1. The evidence warranted a finding that the defendant was negligent in the operation of the electric crane by its employee, the crane operator.
There was evidence that as the electric crane was traveling along the overhead track one wheel thereof ran upon the plaintiff's left hand and injured it. It could have been found not only that the crane was not brought to a stop before it reached the plaintiff but also that the plaintiff was not warned of its approach.
So far as the defendant's contention that the plaintiff assumed the risk of injury from the operation of the crane is based on the doctrine sometimes described as contractual assumption of risk it relates to the issue of the defendant's negligence. Sylvain v. Boston & Maine Railroad, 280 Mass. 503, 505, 182 N.E. 835. This doctrine is that an employer owes no duty to one entering his employment to change the conditions of the premises, equipment or methods of operation which obviously existed and were apparently contemplated by the parties when the contract of service was made and, therefore, that there is no negligence in continuing them. Cronan v. Armitage, 285 Mass. 520, 526, 190 N.E. 12; Hietala v. Boston & Albany Railroad (Mass.) 3 N.E.(2d) 377. But the limitation upon the duty of the employer does not relieve him from the duty of using reasonable care to protect the employee from risks not ordinarily incidental to the continuance of such obvious conditions. No agreement by the employee to expose himself to such risks is implied from his contract of employment. He does not contractually assume the risk of subsequent negligence of the defendant. Wagner v. Boston Elevated R. Co., 188 Mass. 437, 442, 74 N.E. 919; Howard v. New York, New Haven & Hartford Railroad Co., 236 Mass. 370, 374, 128 N.E. 422; Hanley v. Boston & Maine Railroad, 286 Mass. 390, 397-398, 190 N.E. 501; Hietala v. Boston & Albany Railroad (Mass.) 3 N.E. (2d) 377. See, also, Leary v. Boston & Albany Railroad, 139 Mass. 580, 586, 2 N.E. 115,52 Am.Rep. 733. Like rules govern the duty of an owner or occupier of the premises to an employee of an independent contractor or of his subcontractor working on the premises under a contract between such owner or occupier and the independent contractor. Pettingill v. William Porter & Son, Inc., 219 Mass. 347, 349, 107 N.E. 269; Brogna v. Capodilupo, 279 Mass. 586, 590, 181 N.E. 828. Such an employee is on the premises in pursuance of the invitation given to him by reason of such contract, and the duty of the owner or occupier of the premises is commensurate with such invitation. Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288, 293, 76 N.E. 1048; Crimmins v. Booth, 202 Mass. 17, 22, 88 N.E. 449, 132 Am.St.Rep. 468.To such an employee the owner or occupier of the premises is liable for his own negligence and that of his own employees-who are not fellow servants of employees of the independent contractor or subcontractor, Wagner v. Boston Elevated Railway Co., 188 Mass. 437, 441, 74 N.E. 919-in respect to risks not ordinarily incidental to obviously existing conditions. See Demaris v. Van Leeuwen, 283 Mass. 169, 173, 186 N.E. 69.
The evidence warranted findings that the risk to the plaintiff of the operation of the crane, in the circumstances shown, without its being brought to a stop or warning being given the plaintiff of its approach was not ordinarily incidental to the conditions of the premises, equipment or methods of operation obviously existing either at the time of the contract between the defendant and the independent contractor or at the time the plaintiff began work on the premises, and that the defendant's crane operator was negligent in operating the crane in this manner.
It could have been found on the evidence that the crane moved slowly, that it was at all times under the control of the crane operator, who walked along on the ground near it as it progressed, and that he could bring it to a stop almost immediately if occasion required. There was evidence that it was the practice in this plant for the operator of a crane...
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