Kelley v. Boston Woven Hose & Rubber Co.

• Decision Date: 28 February 1931
• Citation: 275 Mass. 21,175 N.E. 65
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KELLEY v. BOSTON WOVEN HOSE & RUBBER CO.

275 Mass. 21

175 N.E. 65

KELLEY

v.BOSTON WOVEN HOSE & RUBBER CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1931.

Exceptions from Superior Court, Middlesex County; Alonzo R. Weed, Judge.

Action by John Kelley against the Boston Woven Hose & Rubber Company. The trial judge ordered a verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

L. Bean, Jr., of Ipswich, for plaintiff.

Elmer W. Sawyer, of Boston, for defendant.

CROSBY, J.

The question in this case is whether the evidence warranted a finding that the plaintiff received an injury through the negligence of the defendant or its servants. At the close of the evidence, the defendant presented a motion for a directed verdict, which was denied. Thereafter the trial judge reserved leave to direct a verdict under G. L. c. 231, § 120. The jury found for the plaintiff, whereupon the judge upon motion of the defendant ordered a verdict to be entered for the defendant; the plaintiff excepted.

The testimony tended to show the following facts: The defendant's premises were enclosed by a fence and were adjacent to the tracks of the Boston and Albany Railroad. There were two spur tracks which extended from the main tracks of the railroad to a building of the defendant on its land, which were used for the transportation of freight to and from the building. The employees of the railroad company were directed by the defendant to move certain freight cars on its sidings to the main tracks; one of these cars contained bales of rubber, the property of the defendant. The door of this car was open, and while the cars were being moved a bale of rubber about two feet square fell out of the car and injured the plaintiff, an employee of the railroad company, who was standing at or near a switch waiting to throw it after the cars had passed. There were other bales of rubber in the car at the time of the accident. The switching operations were in charge of a yard conductor in the employ of the railroad company. He was called as a witness by the plaintiff and testified that at the time they were moving these cars there were no men there unloading them; that it was the duty of himself or his brakeman, before starting, to see that everything was free and clear and that it was safe to move the train.

The plaintiff contends that the evidence warranted a finding of negligence of the defendant in two respects, (1) that the contents of the car were not left in a safe and proper condition for switching the car from the spur track to the main track; and (2) that the defendant was negligent in leaving the car door open. With respect to the first contention, there was no direct evidence that, when the car was partially unloaded by the removal of a portion of its contents, the remainder in the car was left in an improper and unsafe condition. As to the second contention, it does not appear that, when a portion of the contents had been removed, the door had been left open by the defendant. If, however, it be assumed that the door was left open by the employees of the defendant, it...