Leary v. William G. Webber Co.

• Decision Date: 18 October 1911
• Citation: 210 Mass. 68,96 N.E. 136
• Parties: LEARY v. WILLIAM G. WEBBER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 68

96 N.E. 136

LEARY v. WILLIAM G. WEBBER CO.

Supreme Judicial Court of Massachusetts, Essex.

October 18, 1911

Oct 18, 1911.

COUNSEL

Sweeney & Cox, for plaintiff.

Matthews Thompson & Spring, for defendant.

OPINION

LORING J.

The plaintiff's story in this case was that she had come down on the elevator from the top to the first floor to get a piece of satin. After getting it she returned to go up in the same way and found 'the elevator was up.' She rang the bell and Kinsman came down with some matting in the elevator. She waited while he took it off, and then (to quote her own words) 'I went to get on the elevator, and as I put my right foot on the elevator, and before I had a chance to put the left foot on the elevator, it shot up.' 'The next thing I remember [was] hanging onto something; it seemed to me [to be] the bar under the elevator.' She testified that she hung on until she got nearly to the second floor, when she let go and fell to the bottom of the elevator pit, some three feet below the basement floor.

The accident happened on March 31, 1906. Kinsman testified that he was employed to run the elevator on February 2d of the same year, 6 weeks and 4 days before the accident. He was then 'about 23 years of age,' and 'left school in June, 1902,' when he 'was about 18,' having gone through the grammar school. He testified that he worked in a grocery and bakery for 6 months, then for a grocer 'about a year,' then that he was in the grocery business for himself for a year and a month, then 'filled in a vacation time' for two months, then worked for grocers a year and a half, and then for the United Shoe Machinery Company for three months, and then for the defendant. He never had run an elevator before and was employed by the defendant at $5 a week to run the elevator in question.

The plaintiff was the head fitter in the defendant's establishment and had been in their employ for 15 or 16 years. She testified that Kinsman 'didn't seem to have the control of the elevator that the other boys had, but he seemed to be slower in his movements.' 'When you spoke to him he didn't seem to grasp the meaning of what you said, and then he had rather a sort of flippant way of answering and stupid way of looking at you, and very often he would laugh when there wasn't anything to laugh at,' and that she noticed this right away after he came to work. On being asked what she had noticed in respect to his laughing she testified, 'Well, for instance, I would say to him, Tell Mr. Palmer or tell somebody else something on that floor in regard to a suit, and he would look at me and laugh instead of starting and doing it; instead of making some answer he would laugh and many times wouldn't do it.' On cross-examination she testified: That she rode with Kinsman 30 times a business day, about 180 times a week, and during the time that Kinsman was there she had noticed 'that he could not control the car, as you [she] thought, very well,' 'that he could not stop and start it properly,' and 'when you [she] say [says] he didn't run it properly, that was because he didn't seem to have control of it.' That '[she] had seem him start it and stop it improperly,' and 'by starting it improperly you [she] mean [meant] start it when he ought not to.' That she had 'seen him start the elevator before he would fully close the door.' She further testified on cross-examination that she had 'been perfectly familiar with elevators for many years, in the sense of riding on them,' and 'with that elevator'; that she knew that elevators more rapidly and are controlled by a lever; that people enter them through folding doors; that when the door is open that that leaves a space into which one can fall into the well; that she had seen Kinsman start the elevator before he closed the door wholly. In answer to the question, 'And you knew that if the elevator went up without the door being wholly closed there would be nothing to prevent a person on the floor from falling down the well?' She answered, 'Yes, sir; I knew it, but I didn't think of it in that way.' She further testified that she did know it, and again, in answer to that question she testified that 'if the boy did not start the elevator properly at the floors there was a chance that somebody would be hurt by falling,' and that 'there was a probability that owning to this boy not handling the elevator right, an accident would be liable to happen,' and 'happen to those who were riding with him.' On redirect examination the plaintiff testified that she had ridden on the elevator when members of the 'firm' were on it, and once she heard one of the 'partners' 'reprimand the boy about bringing the elevator even with the floor,' and in 'one instance he told the boy if he was not careful he would have an accident.' On re-cross-examination she testified that she had 'seen him [Kinsman] quite a few times reprimanded.'

There was corroboration of the plaintiff's testimony as to Kinsman's incompetency. One of the defendant's employés testified that she noticed something about Kinsman that struck her as peculiar and unusual; 'he didn't talk as other people would talk.' 'He would talk about things that I didn't understand what he was talking about. He was laughing all the time. He would laugh at things anybody else wouldn't laugh at.' 'I have often seen him going up on the elevator and I would be on the elevator with him and he would be waving his hand to all the girls, some of the girls in the store and sometimes hollering out their names and laughing, and oftentimes telling things that I wouldn't understand what he would be talking about; couldn't understand him; they would have no meaning to them--his words.' Another employé testified that 'there was something in his manner that struck me as unusual and peculiar,' 'such as laughing and talking foolishly.' In answer to the quesion, 'What was there to laugh at at the time that he laughed?' she testified 'There wasn't anything that I thought was.' 'He seemed frivolous talking.' 'There didn't seem to be any sence to his conversation.' After testifying that he stopped and opened the elevator door before getting level with the floor and that he often would start up before closing it, she was asked, 'How far up would he go befoer he closed the door?' and she answered, 'Well, perhaps sometimes that far [indicating about two feet],' and that...