Green v. Tarr

• Decision Date: 22 November 1910
• Parties: GREEN v. TARR. SAME v. NILES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 111

92 N.E. 1003

GREEN

v.TARR.

SAME

v.NILES et al.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 22, 1910.

Exceptions from Superior Court, Essex County; Wm. B. Stevens, Judge.

Actions by John E. Green against Fred L. Tarr and against William H. Niles and others. Verdict for defendants, and plaintiff excepts. Exceptions overruled.

A. B. Tolman, J. H. Sisk, W. E. Sisk, and R. L. Sisk, for plaintiff.

Matthews, Thompson & Spring and Wm. H. Niles, for defendants.

KNOWLTON, C. J.

These are two actions, one against the plaintiff's employer and the other against the owners of the building where the plaintiff worked, to recover for an injury received by him while riding upon an elevator. The elevator was for the carriage of freight from the level of the street to the fifth floor and the intervening floors of the building. It was designed to take a load of 3,000 lbs. in addition to its own weight. Its rate of speed was from 45 to 50 feet per minute. The platform ws about 5 feet square. All these facts were put in evidence by the plaintiff and were undisputed. There was testimony that signs were posted, bearing these words: ‘Take notice. For freignt only. All persons riding on this elevator do so at their own risk.’ There was evidence tending to show that, when the elevator was not otherwise in use, employés often rode upon it without objection. At each floor there was a hatchway or plank floor in two parts, so arranged that it was opened and shut automatically by the elevator as it passed up and down; each part being lifted and rolled back upon a track under the floor by the elevator as it came in contact with it, and then returned to its place by the force of gravity after the elevator had gone by. At the edge of the platform, on the two sides of the elevator where the tracks for the hatches were located, there was a strip of wood about 2 1/2 inches wide and 2 1/2 inches high, bolted through the floor, to prevent anything carried on the elevator from going over the edge of the platform.

The plaintiff was about 20 years of age. He had come down the stairs from the fifth story on an errand, and was going back, when he saw the elevator standing at the first floor, got into it, and invited Mrs. Nicholson, an employé whom he saw coming to her work late, to ride up with him. When both were on the elevator, he started it. As he was passing the fourth floor the heel of his foot was over the edge of the platform outside of the strip of wood 2 1/2 inches high, bolted through the floor of the platform, and it caught upon some part of the surrounding structure and was injured. He and Mrs. Nicholson were the only persons who saw the accident.

When asked in his direct examination to state what happened, the plaintiff said: ‘As near as I can think, a sudden jolt. The elevator was then at the fourth floor. Well, I said jolt. Just the same as in an electric car if it stops sudden. I tried to catch myself, self, and in catching myself I caught my foot.’ To the question; ‘What happened to you when the jolt came?’ he happened: ‘Well, the next I remember, my foot was caught.’ He also said: ‘When I stepped backwards to catch myself and the jolt occurred, the next I remember was my foot caught and I yelled, and after I passed the beam I suppose it came out itself. * * * The car stopped automatically at the fifth floor. I jumped off the car. The car stopped even with the floor.’ He testified that he had ridden on the elevator a great many times during the months that he has worked there before the accident, and said that when he had ridden on it ‘it shook violently, but not as violently as it did the day I was hurt.’ Answering another question he said, ‘I meant that it shook strongly, as near as I can remember, all the time I was there.’ To the question; ‘Now, then, what else did it do besides shaking strongly during the time you were there, or any portion of the time?’ he replied: ‘Well, it jolted, and seemed to jolt sideways the day I got hurt. * * * On the day of the accident, when it vibrated so strongly, it did not shake me off my feet. It did not shake the position of my body, that I remember of, so that in all the vibration that I have described, there was not vibration enough to disturb my standing up without holding onto anything.’

Mrs. Nicholson, called by the plaintiff, testified in part as follows: ‘Green told me to stand in the middle, and he stood facing me. I do not know how far from the edge, but a little way from me. There was conversation. Green was standing right in front of me. I do not know where he stood in regard to the post. He was talking to me. I did not notice anything different from any other time I was on the elevator. There was no more vibration on this elevator than on any other one, that I noticed. The first thing I knew, I heard John pleading for me to stop the elevator, and I said: ‘I don't know. What will I do?’ and I began screaming and after that I cannot tell. * * * I do not know just how he was caught. * * * The elevator went on up. I got out on the top floor.'

In cross-examination she testified that Green was telling her something that happened to him with a lot of other boys in the Lynn Theater, when a policeman on duty called out for them to move on, or...