Kelly v. Eastern S.S. Lines, Inc.

• Decision Date: 03 March 1932
• Citation: 179 N.E. 921,278 Mass. 361
• Parties: KELLY v. EASTERN S. S. LINES, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 361

179 N.E. 921

KELLY

v.EASTERN S. S. LINES, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1932.

Exceptions from Superior Court, Suffolk County; Cox, Judge.

Action by Martin Kelly against Eastern Steamship Lines, Inc. Directed verdict for defendant. On plaintiff's exceptions.

Exceptions overruled.

Charles Toye and Michael Ruane, both of Boston, for plaintiff.

Arthur J. Santry and Roscoe Cross, both of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff while employed as a longshoreman by the defendant and engaged in hauling a truck loaded with a crate of machinery from the steamship ‘Cornish,’ owned by the defendant, onto Union Wharf in Boston. At the close of the evidence of the plaintiff, the defendant filed a motion for a directed verdict in its favor; this motion was allowed and the plaintiff excepted. The defendant introduced in evidence a release signed by the plaintiff, and a check for $32 made by the defendant payable to the plaintiff and indorsed by him.

The plaintiff in describing the accident testified ‘That he was using an ordinary two-wheel truck, which was one of the trucks usually used there; that there were also four-wheel trucks there and that they are also used for hauling freight, unloading boats and loading them; that the four-wheel trucks are hauled by means of an electric motor and not by the use of the chain; that they were unloading a general cargo, including groceries and machinery; that the machinery they were unloading was in a crate and it was quite big; that the two-wheel truck was the kind they had always used; that Patrick Connors was a foreman on the ship and that he directed him to take this piece of machinery; that seven or eight men assisted him; that one man was with him at the handles of the truck and the other men were at the back raising the load onto the truck; that Connors told him and the man with him to break it down and they got it loaded onto the truck; that then Connors told him to go ahead; that he proceeded along the width of the boat towards the skid; that he was in the handles of the truck with one man alongside of him at the handle of the truck and the other men were at the rear of the truck; that when he got within about two yards of the skid Connors said ‘come on, boys, push hard and get it onto the chain’ and he was knocked down; that the men pushed so hard it threw all the weight on him; that it was pushed from the top; that there was quite a grade there and the tide was very low and it had to be made with strength alone until it got onto the chain; that when the men pushed down he was knocked down on his hands and knees; that the machinery did not fall off the truck and that the truck at that time was in the ship and had not made the skid; that he got up himself and he saw that the wheels of the truck were against the skid; that Connors asked him if he was hurt and he said he didn't know, but that he felt his back sore; that two men helped him to lift the truck and Connors told them to back the truck into the ship again and then they made a run up and made it that time; * * * that the usual method of discharging cargo that he had taken part in for six months was for a man to take one of the small hand trucks, get the load in order, and carry it up out of the ships over the brow to the chain and that then the cog in the chain would take the axle and carry you up to the level of the dock; that if a man had a piece of heavy freight, a piece of freight more heavy than-usual, it was the usual thing for other men to help him with his truck up onto the brow and that they were ordered to do it; that occasionally a particularly heavy piece that couldn't be moved on a truck was carried by these motor trailers; that at the time of the accident he was dragging the truck...