French v. Boston Coal Co.

• Decision Date: 14 May 1907
• Citation: 195 Mass. 334,81 N.E. 265
• Parties: FRENCH v. BOSTON COAL CO. SAME v. CONVERSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 334

81 N.E. 265

FRENCH

v.BOSTON COAL CO.

SAME

v.CONVERSE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 14, 1907.

Exceptions from Superior Court, Middlesex County; John H. Hardy, Judge.

Actions by Samuel P. French against the Boston Coal Company and against Elisha S. Converse. From a judgment for plaintiff on trial of the cases together, defendants bring exceptions. Affirmed.

F. L. Washburn and G. L. Mayberry, for plaintiff.

Robert W. Nason and Thomas W. Proctor, for defendant coal company.

Dickson & Knowles, for defendant Converse.

MORTON, J.

These two actions are by the same plaintiff against two different defendants, for the same injury. There was a verdict for the plaintiff in each case, and the cases are here on exceptions by each defendant. The two cases were tried and argued together, and we, therefore, consider them together.

The injury was caused by the plaintiffs falling into a coal hole connected with a building on the corner of Milk and Pearl streets belonging to the defendant Converse. The accident occurred at about 6 o'clock in the evening of October 6, 1898, as the plaintiff and a friend were walking along the sidewalk on Pearl street. The coal hole had a hinged iron cover with a chain attached to it which was intended to be fastened to a beam in the cellar so that the cover could not be opened beyond an angle of fifty degrees. But there was evidence warranting a finding that at the time of the accident the chain had been unfastened from the beam and the cover laid back flat with no railing to prevent any one from falling into the hole. Portions of the building were let to tenants, but the defendant Converse retained control of the basement and heated the building and employed the engineer and fireman who operated the heating apparatus. The coal hole was in his control and that of his servants and agents and was used for putting coal into the basement for heating purposes. At the time of the accident the coal company was putting in coal or had just finished putting in coal for the defendant Converse for heating purposes. The team did not belong to the coal company but was hired by it from another concern. There were two men with it, one being in the coal company's employ and the other, the teamster, in the employ of the concern from which the team was hired. For the purposes of this case both men must be regarded we think as the servants of the coal company. These men were the only witnesses on behalf of the defendants who were present at the time of the accident, and there was a conflict of testimony between the plaintiff and them as to where they were and what they were doing when he fell into the coal hole. The testimony of the plaintiff tended to show that he ‘noticed the team, the back end of the team was towards me, two men were about it; the men were not unloading coal, they were in the street.’ The testimony of the men tended to show that they had unloaded the coal, and that one of them had gone back and got a broom and was sweeping the sidewalk, and that the other was guarding the hole and was about two feet from it, and that just before the plaintiff fell in, he said to him ‘Look out.’ In this conflict of testimony it was for the jury to determine what the facts...