Gilmore v. Kilbourn

• Decision Date: 06 December 1944
• Citation: 317 Mass. 358,58 N.E.2d 143
• Parties: JAMES GILMORE v. WALTON G. KILBOURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 358

58 N.E.2d 143

JAMES GILMORE v. WALTON G. KILBOURN.

Supreme Judicial Court of Massachusetts, Worcester.

December 6, 1944

September 26, 1944.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Negligence, Bale of hay. Evidence, Matter of conjecture.

The mere fact, that wires binding a bale of hay all broke at once when the bale without the use of hooks was being lifted to be placed upon a truck, did not warrant a finding that they were of insufficient strength.

Testimony at the trial of an action for personal injuries, sustained when binding wires with which the defendant had baled hay broke as the plaintiff was loading the bale upon a truck, left the cause of the breaking a matter of conjecture and did not warrant a finding of negligence of the defendant.

TORT. Writ in the Second District Court of Eastern Worcester dated September 2 1941.

On removal to the Superior Court, the case was tried before Broadhurst, J.

W. W. Buckley, (H.

T. Broderick with him,) for the plaintiff.

M. C. Jaquith, for the defendant.

WILKINS, J. This is an action of tort to recover for personal injuries sustained by the breaking of wires around a bale of hay prepared by the defendant for delivery to the plaintiff's employer. A verdict for the plaintiff was recorded under leave reserved by the judge, who subject to the plaintiff's exception allowed a motion of the defendant to enter a verdict in his favor.

According to the bill of exceptions certain facts "were established by the evidence and were not in dispute": On April 15 1939, the plaintiff and three other employees of a Dr Desmond went to Lancaster to a barn, occupied by the defendant, to get a load of hay. Several weeks before Dr Desmond had purchased the hay for delivery at the barn. Other loads previously had been taken by the plaintiff and his fellow employees, one being on the previous day, at which time the plaintiff and these others had built in the barn a platform of bales from which to load to a truck owned by Dr. Desmond. On the afternoon in question when the plaintiff arrived, the truck was partially in the barn and backed to the platform. A baling machine in the barn was in operation by the defendant, and some bales were on the floor ready for loading. The bales, held together by three wires, were approximately forty-two inches by seventeen inches by twenty-one inches, and varied in weight from one hundred to one hundred fifty pounds, the average being one hundred twenty-five pounds. The defendant had nothing to do with loading, which was done in the following manner. The bales on the floor were picked up by the plaintiff and one Albert, a fellow employee. Each took one end of a bale, lifted it between them, and carried it by hand to the platform, from which they pushed it up to one Blair, a third employee on the truck, who stooped over and pulled it up. The plaintiff and Albert selected, as far as possible, the heaviest bales. The plaintiff was injured when the truck was almost loaded with twenty-five to thirty bales. The plaintiff and Albert had carried a bale onto the platform, and raised it to place it on the truck. At this moment the bale broke, knocking the plaintiff off.

The testimony as to how this happened was given by Albert and the plaintiff. Albert testified, "We got a bale of hay, and we picked out the heaviest one so the load wouldn't be too high; this bale maybe weighed one hundred fifty pounds. We picked it up, climbed up on the stairs [of the platform] and were pushing it on the truck, the load was getting high; we had it about shoulder high. He was on the left and I was on the right, and we were just pushing it up when all the wires gave and the bale swung open and hit" the plaintiff. "After they pushed it so far the man on top grabbed it, the witness and the plaintiff kept pushing, and the man on the load pulled it up. All three used their hands and none of them had . . . baling hooks. . . . While they were pushing the bale up, all the wires on the bale broke. He could hear the wires break. There was a cracking noise. He did not notice anything about this particular bale when they picked it up leading him to believe it might break. It was a good looking bale . . . heavy . . . and not loose." "There was one broke and all broke together the pressure of the bale."

The plaintiff testified: The bale which broke weighed about one hundred thirty-five pounds. All three wires were around the bale when they picked it up, one being in the centre and the other two about five inches from the middle one and four or five inches from each end. These were the same in size and style as the wire on the other bales. Albert and the plaintiff picked up the bale twenty to thirty feet from the steps. They each had hold of it all the time and did not drop it or set it down. "Me and Mr. Albert got up these stairs, walked along, we just raised it up, and we got it up to . . . about even with my chest here, when it broke off." They had turned it endwise before raising it. "There was a loud snap, all snapped right open." There was no warning. Asked how many snaps he testified, "I remember just practically all together." None of them, including Blair, had a hook. Blair did not take hold of the bale that broke.

The only testimony as to the appearance of the broken wires came from Albert and offered a wide choice of numerous inconsistent combinations of facts. We attempt to cull out those that might be considered most favorable to the plaintiff. See Kelly v. Railway Express Agency, Inc. 315 Mass. 301 , 302. He examined the broken bale. "The hay was spread out and the wires which had held the bale together were lying on the platform. The wire was smaller than telephone wire, black in color, with some rust spots on it. There were three wires which had gone around the bale, all of the same length. Some of it was spliced between the ends. All three wires were broken. . . . Some let go where they had been spliced." He testified that the number of pieces of wire that he picked up was three, and also that it was six. The first piece was six feet long with rust on it. "It was not all rusty, about half. Just a couple of places where there was a little bit of rust. . . . One or two little rust spots." He testified that this wire came apart at a splice and also, to the contrary, that the splice was intact. The second piece was the same length, with rust on it, how many spots he could not say. It...