Gray v. Boston, R.B.&L.R. Co.

• Decision Date: 05 January 1928
• Citation: 261 Mass. 479,159 N.E. 441
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GRAY v. BOSTON, R. B. & L. R. CO.

261 Mass. 479

159 N.E. 441

GRAY

v.BOSTON, R. B. & L. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1928.

Exceptions from Superior Court, Suffolk County; Frederic B. Greenhalge, Judge.

Action of tort by Alfred Gray against the Boston, Revere Beach & Lynn Railroad Company to recover for personal injuries while in the employ of a stevedore, unloading coal at defendant's wharf under contract with defendant. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

E. M. Shanley, of Boston, for plaintiff.

Thomas Kelly, of Boston, for defendant.

SANDERSON, J.

In this action the plaintiff seeks to recover for injuries sustained by falling from a staging while he was in the employ of one John Donahue who, under contract with the defendant, was unloading coal from a barge at its wharf to its coal pocket, in East Boston. At the close of the evidence the trial judge denied the defendant's motion for a directed verdict, the jury found for the plaintiff, and the case is before us on the defendant's exceptions.

The jury were warranted in finding that, on the day of the accident, the plaintiff's work required him to stand upon the movable outrigger of a staging used for unloading coal. This staging was built by the defendant in 1922 for that purpose, and is a permanent part of the wharf, being made fast to it by chains. As the coal buckets were raised and lowered, the plaintiff's work was to guide them so they would clear the staging, and in doing this it was his practice to rest against the rail of the outrigger to avoid losing his balance and falling into the hold of the vessel. While performing this work on the day in question, he leaned against the front rail, which broke, causing him to fall and sustain the injuries for which the action is brought.

Donahue had an oral contract with the defendant to unload a cargo of coal from the barge at the wharf. He had done similar work for it for several years under an oral contract, unloading 10 or 15 barges a year. The defendant furnished the staging of which the outrigger was a part, and was to make repairs upon it. There was evidence that the defendant's employees made repairs from time to time, and also that repairs were made by employees of Donahue, but that as a rule they were made by the defendant, and that the defendant's superintendent had been seen examining the staging. Donahue furnished the engine and certain other apparatus used in unloading boats; his engine was used to lower the staging into a horizontal position when there was coal to unload, and, after the cargo was unloaded, to hoist the staging into an upright position, where it was made fast and left until the next cargo should come. The plaintiff had been working at the same place four or five days, unloading the same barge, and had worked on the same staging on other occasions. He saw nothing wrong with it, although he made no special examination of it. He testified that at no time during the four or five days before the accident did he allow any of the buckets to strike the rail; that he had nothing to do with the staging except to lower it or hoist it at times during the period of his employment.

There was evidence that when the plaintiff fell the front rail of the outrigger came down into the hold with him; that the places where it was attached to the stage were ‘dirty and rotten,’ the nails were of different kinds and had pulled out-some were rusty and broken off-the boards, when examined after the accident, ‘were rotten,’ broken off and discolored, and the sides of the staging were ‘decayed and rotten.’ One witness testified that the condition could be seen easily after the accident but not before. An employee of Donahue, called by the plaintiff, testified that he worked on this same staging a week or two before the accident, when the front piece of the outrigger came out, and the nails were rusty and ‘nail holes rotten,’ and it was then repaired by some one who was not one of Donahue's employees. There was evidence that the contractor sent for the defendant's employees when he wanted them to make repairs, but that, ‘whenever it would break and there wouldn't be anybody round belonging to the company. [Donahue's] men would do it themselves,’ and if there were real repairs he reported to the defendant. A carpenter...