Fahey v. Osol
| Decision Date | 20 January 1959 |
| Citation | 155 N.E.2d 454,338 Mass. 429 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | James P. FAHEY v. Arnold OSOL. |
Laurence D. Yont, Boston, for plaintiff.
Roger B. Coulter, Boston (Philander S. Ratzkoff, Boston, with him), for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.
This is an action of tort brought by an insurer in the name of the plaintiff under G.L. c. 152, § 15, the insurer having paid workmen's compensation to the plaintiff for injuries sustained by him in the course of him employment as a painter. His injuries resulted from the collapse upon him of a staging caused by the breaking of a rope supplied by the defendant to the plaintiff's employer. The jury found for the plaintiff and the case is here upon the exceptions of the defendant.
The defendant conducted a one-man concern renting ropes, hooks and other equipment to painters. He had no special technical training in the testing of ropes other than the knowledge he acquired in the practical experience of his business. He testified that when a rope was returned from a lessee he would place it on the ground and observe it, then run it through his hands and untwist it a short distance, about every ten feet, so as to inspect its core. He so tested the rope which he rented to the plaintiff's employer, one Kent, on June 24, 1952, upon its return from the previous renter. He testified that he saw nothing wrong with it. It was a three-quarters inch manila rope which he had purchased new a few months before from a reputable dealer and which had been used a few times when leased to Kent. It was the standard size used by painters in erecting stagings, and was designed to support from 5,400 to 5,820 pounds in weight. Kent brought the rope to the site of the painting job. The plaintiff, a painter for thirty to thirty-five years and a licensed master rigger since 1934, testified that he laid the rope on the ground, observed it, and discovered no defect in it, and then used it in erecting the staging. After the staging was completed, he and another employee lowered it to within two feet of the ground and both jumped upon it to test it. While the staging was being used the third morning after its completion, one of the ropes which supported an end of the staging broke permitting it to fall upon the plaintiff who was working under it, seriously injuring him.
It could have been found from the defendant's testimony regarding the short but continuous periods of leases during the early summer of 1952 that the rope was examined by the defendant not only on its return by the lessee immediately prior to Kent but also on the return by the successive lessees, after the rope, according to expert testimony, had sustained an attack by acid.
An expert, whose qualifications were not questioned and to whom the rope was turned over about three weeks after the accident, observed one complete fracture and four places which contained partial fractures of the strands, two consisting of two of the three strands and the rest of a single strand. He was of opinion that the complete break was due to an attack of acid which had occurred more than two months before his examination. He also tested the tensile strength of the rope. He demonstrated to the jury how one could discover the defect by untwisting the strands for a short distance but far enough to see the discoloration of the fibres caused by the acid. He also testified that the defect would be manifested by a manual examination which would appear from the brittleness of the rope. Whether a licensed rigger would discover it he did not know and he did not know the duties of such a rigger; '[m]any would not be able to find it.' An examination of the rope by a licensed rigger might lead him to assume that the rope was safe. The expert further testified that there is a relatively simple test by feeling or observing a darkening of the fibre which was immediately apparent in his own examination of the instant rope.
The defendant contends that there was error in the denial of his motion for a directed verdict. We cannot agree. The fact that the rope broke under a strain slight in comparison to that which a sound rope should have been able to withstand is some evidence of the defendant's negligence. Graham v. Badger, 164 Mass. 42, 41 N.E. 61. See Golden v. Mannex, 214 Mass. 502, 504, 101 N.E. 1081. And though it is not enough by itself to sustain a verdict in favor of the plaintiff, Gauld v. John Hancock Mut. Life Ins. Co., 329 Mass. 724, 727, 110 N.E.2d 318; Nebraska Bridge Supply & Lumber Co. v. Jeffery, 8 Cir., 169 F. 609, 611, if coupled with evidence that the defect was discoverable by proper inspection, it is sufficient. Graham v. Badger, 164 Mass. 42, 41 N.E. 61; Donahue v. C. H. Buck & Co., 197 Mass. 550, 83 N.E. 1090, 18 L.R.A.,N.S., 476; Doherty v. Booth, 200 Mass. 522, 86 N.E. 945; Hix v. New York Cent. & H. R. R. Co., 230 Mass. 309, 119 N.E. 827. The jury could find here, from the breaking of the rope supposed to support at least 5,400 pounds while being used as intended and while supporting about 600 pounds, on the third day after being delivered to Kent, that the rope was defective when delivered by the defendant to Kent, and that if the defendant made the visual and manual examination and the observation of the fibres he testified he did, he ought to have discovered its defects. Upon the soundness of the rope depended the lives and safety of those using the staging.
The second main contension of the defendant is that, if there was negligence upon his part in supplying the rope, there was also negligence on the part of the plaintiff in not discovering the defects and in using it to erect the rigging. This result does not necessarily follow. Graham v. Badger, 164 Mass. 42, 48, 41 N.E. 61; Haskell v. Cape Ann Anchor Works, 178 Mass. 485, 486-487, 59 N.E. 1113, 4 L.R.A.,N.S. 220; Donahue v. C. H. Buck & Co. 197 Mass. 550, 553, 83 N.E. 1090; Hix v. New York Cent. & H. R. R. Co., 230 Mass. 309, 312, 119 N.E. 827. And see Jones v. Pacific Mills, 176 Mass. 354, 357, 57 N.E. 663. The jury could find that the plaintiff made a visual examination before using the rope for the rigging; that he could assume that the rope was safe; that the defect was not obvious; and, as has been said by this court, that the defect 'was sufficiently apparent to be discoverable...
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