Mahoney v. New York & N.E.R. Co.
| Decision Date | 01 March 1894 |
| Citation | 36 N.E. 588,160 Mass. 573 |
| Parties | MAHONEY v. NEW YORK & N.E.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff was a freight handler in the defendant's employ, being engaged in one of the defendant's freight houses in Boston, and being one of a gang or section of about half a dozen men under the orders of Thomas Grady, the section boss or section foreman. Their duties were chiefly in loading, unloading, and trucking freight, whether from cars or teams. On the evening of January 14, 1890, about 5:30 o'clock,--it being dark,--an express team was driven to the door of the freight house containing a bale of burlap, about 61/2 feet long, 4 feet wide, and 2 feet high, and weighing about a ton. The wagon was in good condition. The driver of the team asked assistance in unloading the bale. Grady directed the gang including plaintiff, to go and assist him, and went with them. Plaintiff and one other man, by direction of Grady went upon the team, at the rear of the bale, and shoved while the rest stood in the house, and pried up the end of the bale, pulling it in by grappling with hooks. The floor of the wagon was about six inches below the sill of the door. At the first attempt the men made to move the bale, the wagon shoved forward a few inches, and Grady told the teamster to trig or block his wheels, which the teamster did, and the unloading was resumed. Several efforts were made to move the bale into the house, advancing it a short distance each time, and about 10 minutes were consumed in getting the bale about halfway into the house, at which time about three feet of the bale remained resting on the floor of the wagon. At this point the men made another united effort, and the weight of the bale and the men on the rear of the wagon caused the rear of the wagon to settle down, and the bale and plaintiff fell to the ground together, the wagon at the same time shoving out into the street. The bale fell over on plaintiff, causing the injury to his knee for which the present action is brought. Similar bales had formerly been brought to the house in the same and similar wagons, and plaintiff had several times assisted in unloading, and was familiar with the operation, and with the kind of team in which the bale was brought. Grady, the section boss, was also known as the "checking clerk," and nearly all of his time was consumed in checking the freight from and into cars. It was his duty to determine in which cars the freight should be placed, and to direct the men where to put it. All the various sections in the freight house were under the general control of the foreman of the house.
Lund, Davis & Welch and C.B. Loud, for plaintiff.
F.A. Farnham, for defendant.
The questions raised by this bill of exceptions, and argued by the defendant, are three. First, whether there was evidence to warrant a finding that Grady, the section foreman, was a person whose sole or principal duty was that of superintendence, within the meaning of the statute; second whether there was evidence that the plaintiff was in the exercise of due care: and, third, whether there...
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