Gagnon v. Seaconnet Mills

• Decision Date: 25 February 1896
• Citation: 165 Mass. 221,43 N.E. 82
• Parties: GAGNON v. SEACONNET MILLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 221

43 N.E. 82

GAGNON v. SEACONNET MILLS.

Supreme Judicial Court of Massachusetts, Bristol.

February 25, 1896

The testimony in the case was as follows:

Frank Gagnon, the plaintiff, being duly sworn, testified as follows: That he came to Fall River from Maine in 1893; that previous to that time he had run a farm for himself, in Maine, for about 20 years; that he was not much accustomed to, nor much acquainted with, the use of teams; that, in connection with his farm, he had used horses, oxen, and wagons; that he had there carted stones, sometimes, and hay but never any timber; that during about half the winters in Maine he had worked at logging, "from a month to four months" in each winter; that some of the logs which he handled were a foot through, and about 20 feet long; that he had worked on the sleds, hauling logs from the woods to the bank of the stream, helping load, fasten, and unload them that he fastened them with a chain, so they wouldn't be jolted off; that the average number of logs to a load would be about 5, and that it would be necessary to load them on top of one another; that the logging was done with sleds on the snow; that he had also chopped trees, and had helped to make the roads; that he came to Fall River in July, 1893, and did not have much of anything to do until the following December, when he found work on a farm for about two months, cutting bushes and sawing wood; that he afterwards worked on a street railway for 5 or 6 weeks as laborer with pick and shovel; that in neither of his two last-mentioned employments did he have anything to do with teaming, or loading or unloading teams; that he went to work for defendant in August, 1894, at a new mill which defendant was building, and was first employed for about 2 weeks digging out the foundation with pick and shovel, and afterwards in helping the ox teamer in drawing stones on a stoneboat or drag, by means of a pair of oxen, and in drawing iron columns and timber into the new mill with the oxen and a truck; that this truck consisted of an axle and two wheels with planking about 4 feet long and 21/2 feet wide attached lengthwise to the axle; that the method of loading and carrying the columns and timber on this truck was to lay them lengthwise on the planking, then fasten a chain to the front end of the pillar or timber, and connect this chain with the yoke of the oxen, and so draw it along, the plaintiff having hold of the hind end of the timber to steer it; that he carried on the truck about 10 beams similar to that by which he was hurt, some of the same size, and some shorter; that he was thus using the truck about 10 days in all, and 7 days over the way on which the accident occurred; that, though he had seen the low gear around the mill for a couple of days prior to the accident, he had never worked on it till the load which occasioned the accident; that there was no regular road at the place where he got hurt,--"it was in a lot"; that there was no road there, except the ruts made by the teams hauling materials into the mill.

In regard to the accident itself, the plaintiff testified as follows: That it happened in the morning on the 2d day of October, 1894; that the plaintiff, with a number of other laborers, was at work piling some planks, when Baker, the defendant's superintendent of construction, called to them to come where he was,--and further testified as follows "After we got there, Mr. Baker told us to help them to load this beam onto a low gear; and, so as we got ready to lift it, Mr. Baker said, 'Is there a roller handy?' One of the men said that there was, 'over there,' and Mr. Baker said, 'Go and get it.' One of the men started, and he got this roller, and Mr. Baker was standing right there, looking at us; and, when this man came with the roller, Mr. Baker told him to put them onto the gear, and pointed to the place. So he did. Then Mr. Baker says 'Now, boys,' he says, 'lift her up.' So we got hold of her, and so we did lift her up. After it was lifted up, the end of this beam above the roller, the team backed up just a little ways, so it got this roller. Then Mr Baker said, 'Shove her ahead.' So we did shove her ahead. He said it was enough,--it was all right. Then I heard some of the men that was around us say, 'Are you going to leave that roller on?' Mr. Baker says, 'Yes; it will only be killing time, for it will be under there all ready when you come to unload it.' Then the team started, and after it started a little ways--I was not looking at this beam all the time, just steady, the same as we would work anywhere where we could not get our eyes on the same thing all the time, but I heard some of the men say that was standing behind it, and Mr. Baker was right there with it--I heard one of the men say, 'It will tip up.' And then Mr. Baker said, 'Get onto it and hold it down,' and I did, and Mr. Bonain did, and Mr. Berube did. I saw them get on, and we started along the road. The road was pretty good when we first started. As we went along I sat on this beam, on the off side,--the right-hand side, nearest to the driver,--both legs on one side nearest to the driver." The plaintiff further testified: That he was standing with the other workmen when Baker looked at them, and said, "Get onto it and hold it down," and that he supposed that Baker said this to him as well as to the others. That he had seen Baker superintending the work, and that he did not work with his hands. Also, that the timber was loaded with its narrow sides at the top and bottom, and that he thought it was loaded all right at the time. That the plaintiff sat down on the timber, about six feet from its forward end, just opposite an upright stake on the gear. That the other men sat along on the timber nearer to the back end, the plaintiff being the nearest man to the driver. That "the team started along, and we went on, not a great distance,--a short distance,--and as we went along the road was kinder sidling there, higher on one side than it is on the other, and there was a rock in there; and then, as I was sitting on the stick, the first thing I knew the stick canted over onto me and throwed me against the stake (I was sitting between the stakes),--threw me off onto the stake,--and the corner of it struck my leg a little above the ankle and broke it [the leg] off." That the other men jumped off. That up to the moment of the accident he did not see any unusual, peculiar motion of the gear. That at the time of the accident he did not see or feel the timber fly up at all, and that when the beam began to slip he had no time to get off...