O'keeffe v. John P. Squire Co.

• Citation: 74 N.E. 340,188 Mass. 210
• Parties: O'KEEFFE v. JOHN P. SQUIRE CO.
• Decision Date: 19 May 1905
• Court: United States State Supreme Judicial Court of Massachusetts

188 Mass. 210

74 N.E. 340

O'KEEFFE v. JOHN P. SQUIRE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1905

COUNSEL

Gargan,

Keating & Brackett, for plaintiff.

Walter I. Badger, Wm. Harold Hitchcock, and Chester M. Pratt, for defendant.

OPINION

HAMMOND J.

At the close of the evidence the presiding justice, in reply to a request of the defendant that a verdict be directed for the defendant, said to the jury: 'I am asked by the defendant to rule that, upon the whole evidence, the plaintiff is not entitled to recover. I make that ruling, but base it upon the statement that the plaintiff in this case has not shown that her intestate was in the exercise of due care at the time when he was injured. You are therefore directed to find a verdict for the defendant.' The ruling was that, upon the evidence, the plaintiff was not entitled to recover. If this ruling can be sustained upon any ground, the exceptions should be overruled. The defendant's rights are not narrowed by the reasons given by the presiding justice.

Whether the question of the due care of the plaintiff was a question for the jury, we have not found it necessary to consider because we are of opinion that there is no evidence of negligence on the part of the defendant. The plaintiff's intestate had been in the employ of the defendant for 30 years. He was a working foreman, having sometimes 20 or 30 men under him. He is thus shown to have been an experienced man. The room, which was 300 feet in length, and the same in width, formerly had been used for 'cold storage,' but had been unused for several months before the accident. The plaintiff's intestate was ordered by Crowley, the general superintendent, to take two men and go to the room and clean it. We do not understand it to be contended that he did not know that the room had been out of use for some time; and the nature of the order given to him, in connection with the general appearance of the room, in which there were 'about forty empty boxes,' as well as 'some chutes or troughs' from 18 to 20 feet long, must have indicated to him that the room was not then in a condition for use. This is not a case in which a workman is put at his ordinary work in a room under circumstances which justify him in believing that he is expected to attend to the work without paying any particular attention to the safety of his surroundings. The duty here was to clean up a room which for...