Lynch v. C.J. Larivee Lumber Co.

• Decision Date: 04 March 1916
• Citation: 223 Mass. 335,111 N.E. 861
• Parties: LYNCH v. C. J. LARIVEE LUMBER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 335

111 N.E. 861

LYNCH

v.C. J. LARIVEE LUMBER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1916.

Report from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Michael Lynch against the C. J. Larivee Lumber Company to recover damages for personal injuries sustained by plaintiff while in defendant's employ. Verdict directed for defendant, and case reported. Judgment entered for defendant on report.

Geo. P. Beckford, of Boston, for plaintiff.

Dickson & Knowles, of Boston, for defendant.

PIERCE, J.

The plaintiff was an employé of the defendant, and at the time of his injury was engaged with some fellow employés in taking planks from a pile in the defendant's lumber yard. The pile was four or five feet high and five tiers wide. It was made up of 2x8 and 4x6 timbers, twenty-eight or thirty feet long, not tied. It was thrown by the side of the roadway temporarily, waiting for orders, ‘certain lengths to be picked out of it,’ ‘piled up for a matter of two or three days,’ and ‘not put there for a permanent pile at all.’

The plaintiff testified:

‘The custom of piling the piles in the driveway ‘on orders' has existed on the wharf of this company from the time I went to work there down to the present time,’ sixteen years; that he was a teamster and not a piler; that he had taken lumber off of the piles; and also, while testifying as to the propriety and safety of putting timber up, that ‘the higher up they are the more care should be observed in the putting in of the sticks, and if I had a pile of planks 2x8 lying on the ground up 16 planks thick, that would be safe enough. There is no better way of finding out whether a pile is secure or not than to go right up and take hold of it. There is a sort of feeling when you take hold and shake the pile that shows when it is secure.’

As to the circumstances attending his injury he testified:

‘I had my team loaded in what they call No. 3 driveway and tried to get out, but there was one of the other teams blocking the driveway so I couldn't get out, and when I see I couldn't get out, why, I got off the wagon and, as it is always customary to do, started to help the teamster. As I stopped my team and got off and went up to the pile the man in charge of the job, Mr. Hanify-they were just ready to raise a stick at the time-he said, ‘Come on, Lynch; break it,’ so I stepped in to break it. I got down off the team and walked toward the pile, just walking about 30 feet, you might as well say got off my team and walked up for to help to load the wagon, and when Hanify told me to break it I stepped in for to break it and it came over on me. The breaker is what we call the pivot. There are either a man or two men on each end of the stick, and when they raise the stick the man that is called the pivot or breaker generally steps in and they place it on his shoulder, and he swings it around, the man on front end lets go and the man on the back end bears down, and you swing around, and place the forward end on the wagon. The breaker stands, I should judge, about the middle of the pile and when Hanify told me to break it down, I walked in alongside of the pile for to get it on my shoulder and the pile came over onto me. It hit me in the ankle and knocked me down and broke my ankle. The stick had not left the hands of the men who were to place it on my shoulder and I had done nothing after leaving my team and walking toward the pile except when receiving that direction stood about opposite the center of the pile. Hanify is the man in charge of the job, in charge of loading the wagon. He was tallying and directing the men what sticks to put on the wagon. He always held the same position and he always did the same work. I stood right up close to the pile. I had not noticed what kind of a pile or how it was piled. I did not know that when they lifted this stick the pile was likely to fall over on me. If I did I would not be there.'

The plaintiff's declaration is in three counts, two under the employers' liability act, R. L. c. 106, § 71, cls. 1, 2, and one at common law. Count 1 alleges ‘the negligence of the defendant or of a person in the employ of the defendant exercising superintendence and whose sole or principal duty was superintendence in failing to warn the plaintiff of the dangerous condition of a certain pile of lumber to which the plaintiff had been sent to work.’ Count 2 that ‘* * * he was injured owing to a defect in the ways, works and machinery used in the business of the defendant which arose from the negligence of a person in the employ of the defendant exercising superintendence whose sole or principal duty was that of superintendence to wit, the careless piling of a pile of lumber.’ Count 3 that he was injured owing to the negligence of the defendant in permitting said pile to be in a dangerous and unsafe condition which condition was unknown to the plaintiff but should have been...