Fraioli v. New York, N.H.&H.R. Co.

• Decision Date: 26 May 1934
• Citation: 286 Mass. 450,190 N.E. 605
• Parties: FRAIOLI v. NEW YORK, N. H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 450

190 N.E. 605

FRAIOLI

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1934.

Exceptions from Superior Court, Suffolk County; M. Morton, Judge.

Action of tort by Joseph Fraioli against the New York, New Haven & Hartford Railroad Company. The trial judge ordered a verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.R. I. Gottlieb, B. Nesson, and D. D. Kadetsky, all of Boston, for plaintiff.

H. Lawlor, of Boston, for defendant.

RUGG, Chief Justice.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff while employed by the defendant at its Readville shops. The declaration and bill of particulars alleged that the plaintiff was injured by reason of negligence of the defendant, its servants or agents, ‘because of the omission by the defendant to provide suitable platforms, ways and means and such other facilities as would eliminate the need for the plaintiff to walk on pipes and insecure Footing in the performance of his duties.’ It was admitted that the plaintiff was employed by the defendant. The case was tried on the theory that the defendant was not insured under the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152, § 1 et seq.) and that the only ground of liability was negligence of the defendant at common law. The plaintiff testified that he had worked ten years for the defendant as a laborer or trucker; that he used to load and unload cars, to do iron work and most anything there is in the car shop; that at the time of the accident there was a pile of pipes in front of a bin or racks; that he was engaged with others helping to put the pipes upon racks; that this was not a part of his regular work; that the pipes were about four of five meters long and weighed four or five hundred pounds; that there were seventy or seventy-five of the pipes in the pile when they started to work, and at the time of the accident half of the pile had been put in the racks; that he understood how to do the work without instructions from his boss; that the boss lfet them about an hour and a half before the accident and said ‘Look out, don't get hurt’; that he knew he had to look out that he did not slip if he stepped on one of the pipes. The plaintiff was hurt by the rolling of one pipe when he stepped upon it in attempting to put another pipe into the rack. There was testimony that the pile of pipes was blocked with a piece of wood so as...