Hyde v. Booth

• Decision Date: 22 May 1905
• Citation: 74 N.E. 337,188 Mass. 290
• Parties: HYDE v. BOOTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 290

74 N.E. 337

HYDE v. BOOTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1905

COUNSEL

Walter B. Grant, for plaintiff.

John Lowell and Jas. A. Lowell, for defendant.

OPINION

LATHROP, J.

An examination of the bill of exceptions discloses no cause of action against the defendant, and the order of the judge of the superior court directing a verdict for the defendant was right. The evidence shows that the plaintiff's intestate was a longshoreman in the employ of the defendant, a stevedore, and that the accident happened through a section of one of the hatches of a vessel in which he was working being too short. If the section was placed in position in a certain way it would not bear any weight upon it. The intestate and one of his fellow workmen placed it in position. The intestate then stepped upon it, was precipitated into the hold, and died after a few moments of conscious suffering.

The first count is under the Rev. Laws, c. 106, § 71, cl. 2, and alleges the negligence of a superintendent. There is no evidence to support this count.

The second count is under section 72 of the same chapter, and the negligence alleged under section 71, cl. 1, is a defect in the ways, works, and machinery; and this is the count chiefly relied upon. This count was improperly joined with the others. Brennan v. Standard Oil Co., 187 Mass. 376, 73 N.E. 472. But as this point was not raised at the trial, we proceed to consider the case. The hatch in question belonged to the vessel, and was not under the control of the defendant. It was no part of the defendant's ways, works, or machinery. Trask v. Old Colony Railroad, 156 Mass. 298, 31 N.E. 6; Regan v. Donovan, 159 Mass. 1, 33 N.E. 702; Hughes v. Malden Gas Co., 168 Mass. 395, 47 N.E. 125; Engel v. New York, Providence & Boston Railroad, 160 Mass. 260, 35 N.E. 547, 22 L. R. A. 283; Moynihan v. King's Windsor Cement Co., 168 Mass. 450, 452, 47 N.E. 425; Riley v. Tucker, 179 Mass. 190, 60 N.E. 484; Kirk v. Sturdy, 187 Mass. 87, 72 N.E. 349.

The third count is at common law, and alleges failure to furnish proper machinery and a safe place to work. The plaintiff cannot recover under this count, for the defendant did not furnish the machinery, and had no control over the place where the decedent was at work. Regan v. Donovan, supra; Moynihan v. King's Windsor Cement Co., supra; Hughes v. Malden Gas Co., supra.

Exceptions overruled.