McCarthy v. New York, N.H.&H.R.R.

• Decision Date: 13 February 1934
• Citation: 285 Mass. 211,189 N.E. 30
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: McCARTHY v. NEW YORK, N. H. & H. R. R.

285 Mass. 211

189 N.E. 30

McCARTHY

v.NEW YORK, N. H. & H. R. R.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 13, 1934.

Exceptions from Superior Court, Hampden County; Dillon, Judge.

Action by Florence McCarthy against the New York, New Haven & Hartford Railroad. A verdict was directed for defendant, and plaintiff brings exceptions.

Exceptions sustained.

J. F. Egan and E. S. Searle, both of Springfield, for plaintiff.

E. J. Phillips, of Boston, for defendant.

CROSBY, Justice.

This is an action of tort arising out of an injury received by the plaintiff while he was in the employ of the defendant. The declaration contains three counts. The first alleges failure to provide a proper and safe place for the plaintiff to work, failure to provide him with suitable and safe appliances with which to work, and failure to warn him of hidden dangers or defects in connection with the work. The second count at common law alleges that the defendant required the plaintiff to do painting, in which he was not skilled, and that the defendant failed to furnish him with suitable appliances for doing the work, and failed to warn him of the dangers involved in doing the work. The third count, under the Federal Employers' Liability Act (45 USCA §§ 51-59), alleges that the defendant and the plaintiff were engaged in interstate commerce, and that the defendant failed to maintain an appropriate place where the plaintiff might prosecute his employment safely, failed to furnish him with suitable and safe appliances with which to perform his work, and failed to warn him of hidden defects and dangers connected with the work he was given to do. The defendant's answer was a general denial, except that it admitted that the defendant was engaged in interstate commerce, and that the plaintiff was in its employ. The answer also alleged that under the Federal Employers' Liability Act the plaintiff was guilty of contributory negligence which was the proximate cause of the accident, and that he assumed the risk. At the close of the evidence, upon the defendant's motion the trial judge directed a verdict for the defendant on the ground that no negligence had been established. To this direction the plaintiff excepted.

The plaintiff testified that in 1927 he was hired by Charles Degnan, general foreman of the defendant, to work as a laborer at the defendant's engine house in Springfield. He did laboring work of various kinds in the yard for about seven or eight months, then he was brought inside and Degnan showed him how to paint engines, and thereafter up to the date of his injury he did all sorts of laboring work around the roundhouse. He testified on direct examination that when he started to work ‘they kept their floors pretty good ‘in the beginning’; they were dry but after a while grease formed around there in the aisle.' On cross-examination he testified that during all the time of his employment inside the roundhouse there was grease on the floors. He was then asked: ‘You can't run a roundhouse without having grease on the floor can you?’ and he answered: ‘Black, heavy grease.’ There were posts in the engine house and he painted the lower seven or eight feet of them black from the ground up; he never painted the higher part of the posts, which could be reached only by using a ladder, until Degnan told him the morning he was hurt to get started on them. He asked how he was to get up there and Degnan said, ‘Won't your ladders reach up there?’ and the plaintiff replied in substance that one of them would but that he did not know about the other one; he told Degnan it was not very safe to go up there, and Degnan replied: ‘Go ahead; do the best you can.’ The plaintiff further testified that there were three ladders available, a stepladder ten or twelve feet long, a fifteen-foot ladder, and a ladder between twenty-five and thirty feet in length which was too long to use in plainting the upper part of the posts. The step-ladder was loose and old so that he had to take the fifteen-foot ladder. He had used this lader before outside the roundhouse. He described it as painted green with one rung, the second from the bottom, not broken off but cracked and hanging down, the rungs were loose and the side pieces rounded at the bottom. The floor of the roundhousewas greasy, oily, and there was a lot of rain water around there. He climbed the ladder with his paint pot and brush and started to work; he painted three or four posts and was having trouble with the wings attached to the posts. He testified that he could not get out to the wings as the ladder was not long enough; that Degnan came there after a while and the plaintiff told him he could not reach the end of the wing because the ladder was too short; Degnan said, ‘Why can't you get out there?’ and he replied, ‘I tried to, but I was afraid I might fall off if I would reach too far’; Degnan then said, ‘Why * * * you can get there easy.’ The plaintiff testified that he continued painting there when an engine backed out and the ladder went from underneath him and he was thrown to the floor; that as the engine backed out he ‘felt the post quiver, the house quiver like, or shake,’ He testified on cross-examination that all the large engines that go in and out of the house make it quiver; that there was nothing unusual about that; that he could not...