Kimball v. George A. Fuller Co.

Decision Date08 January 1927
Citation154 N.E. 762,258 Mass. 232
PartiesKIMBALL v. GEORGE A. FULLER CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Superior Court, Suffolk County; A. R. Weed, Judge.

Action by Myron A. Kimball, administrator, against the George A. Fuller Company. On report without decision. Judgment for defendant.

E. G. Loomis, of Boston, for plaintiff.

Kenneth C. Parker, of Boston, for defendant.

BRALEY, J.

The plaintiff's intestate, an electrician and employee of a ‘subscriber,’ while at work on the sixth floor of a building which was being constructed by the defendant, the general contracor, was struck on the head by a piece of plank supposed to have fallen from the twelfth story where other men not in the defendant's employment were at work. The injury having caused his death without conscious suffering, this action is brought under G. L. c. 229, § 5, which in so far as material reads as follows:

‘A person who by his negligence, or by the negligence of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants, to be recovered in an action of tort, commenced within two years after the injury which caused the death by the executor or administrator of the deceased, to be distributed as provided in section one.’

[1] While the due care of the intestate is not questioned, the plaintiff cannot recover unless on the agreed facts and inferences of fact to be drawn therefrom, the parties not having stipulated to the contrary, there is evidence of the defendant's negligence. G. L. c. 231, § 126; Boston Lodge Order of Elks v. Boston, 217 Mass. 176, 104...

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8 cases
  • Kelly v. Eastern S.S. Lines, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 3, 1932
    ...Craven v. Mayers, 165 Mass. 271, 42 N. E. 1131;Morris v. Eastern Steamship Corp. 221 Mass. 306, 108 N. E. 1084;Kimball v. George A. Fuller Co., 258 Mass. 232, 154 N. E. 762;Block v. Opera Holding Co., 258 Mass. 269, 272, 154 N. E. 761;O'Brien v. Boston & Maine Railroad, 265 Mass. 527, 164 N......
  • Combustion Engineering Co., Inc. v. Hunsberger, to Use of State Acc. Fund
    • United States
    • Maryland Court of Appeals
    • November 11, 1936
    ... ...          Appeal ... from Superior Court of Baltimore City; George A. Solter, ...          Action ... by Jacob Hunsberger, individually and to the Use of ... construction work, not to be presumed negligent. Kimball ... v. George A. Fuller Co., 258 Mass. 232, 154 N.E. 762 ... But as stated, it seems to the ... ...
  • Kelley v. Boston Woven Hose & Rubber Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 28, 1931
    ...v. R. H. White Co., 186 Mass. 47, 70 N. E. 1038;Morris v. Eastern Steamship Corp., 221 Mass. 306, 108 N. E. 1084;Kimball v. George A. Fuller Co., 258 Mass. 232, 154 N. E. 762;Block v. Opera Holding Co., 258 Mass. 269, 154 N. E. 761. The cases of Lane v. Atlantic Works, 111 Mass. 136;Griffin......
  • Fichtner v. Schneider
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 25, 1972
    ...have been found that the negligence of the defendants was an effective contributing cause of the accident. But see Kimball v. George A. Fuller Co., 258 Mass. 232, 154 N.E. 762. Since the action was brought against two contractors there is no contention that either of them had exclusive cont......
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