Mcphee v. Scully

• Decision Date: 01 March 1895
• Citation: 39 N.E. 1007,163 Mass. 216
• Parties: McPHEE v. SCULLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 216

39 N.E. 1007

McPHEE v. SCULLY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1895

The plaintiff was employed by the defendant on the defendant's pile driver. The pile driver consisted of a platform, on one end of which was an engine with revolving drum shaft, and on the other end of which, about seven feet from the engine, were two uprights, about thirty feet high called gins, connected at the top by a crosspiece. From near the top to the foot of the engine ran a ladder. A hammer with a base two to three feet by eight inches to one foot projecting both in front and back of the gins, and weighing from 1,600 to 2,800 pounds, moved up and down between the gins. One end of a fall was permanently attached to the hammer; the other end passed over a pulley on the cross piece between the gins, and down to the big drum on the center of the drum shaft. Power was applied to this drum by a friction pulley, so that the drum revolved, raising the hammer, and was then released, causing the hammer and fall to go down together. Braces connected the outer sides of the gins to the ladder. About two feet from the top, from one brace to another, stretched a piece of wood ("a chocking guard," so called) three inches thick and three feet long, fastened at one end by a bolt, the other end movable in such a way that it might be swung against the gins beneath the hammer, and serve as a temporary rest for the hammer, and allow the fall to be slacked and the drum shaft to be used for other purposes. On the end of the drum shaft was a small drum (the "gypsy winch," so called), around which was one end of the gypsy fall. The other end passed over a pulley at the outside and top of one of the gins, and down to the ground. By means of this fall, the piles were hauled and hoisted. The base of a pile was first placed in position, and then the top was swung in between the gins where the hammer ran, so that the pile might receive squarely the full blow of the hammer. At the time of the accident, the plaintiff was swinging a pile into such a position between the gins that a hammer might strike it fair. The hammer was held above chocked. As the foot of the pile had slipped, the gypsy fall had been slackened and the foot reset. To pull the top into place, a strain was put on the gypsy fall, which at that moment was foul of the choking guard where the end of this guard projected horizontally outside of the outside edge of one of the gins, around which end the line had become caught, and tripped it from under the hammer. The hammer fell, and struck the plaintiff's fingers, which were on top of the spile, directly in the way of the hammer as it fell.

COUNSEL

Charles G. Fall, for plaintiff.

John Lowell, Jr., and Samuel H. Smith, for defendant.

OPINION

BARKER J.

The defendant contends that the verdict against him should be set aside--First, because the evidence does not sustain the burden of showing that the plaintiff was in the exercise of due care; second, because the plaintiff ought to be held to have assumed the risk; third, that the accident happened through the negligence of a fellow servant; and, fourth, that, if the evidence shows a cause of action, the proof does not support the allegations of the declaration. The work was driving piles. The plaintiff was one of a gang of seven men, of whom Fahey was foreman. At the time of the accident, the plaintiff was aloft standing on a joist, swinging and steadying a suspended pile, to put it in position. This work was to be done by applying his strength directly to the pile, and he put his left hand on top of the pile, and his right arm between the pile and one of the upright beams between which the pile stood. The driving hammer was five feet above him, upheld by a choking guard, on which it rested while the piles were placed in position. The placing of his hand upon the top of the pile, directly in the line of descent of the hammer if it should fall, is the act which the defendant contends should charge the plaintiff with contributory negligence. But the fall of the hammer while the plaintiff was at his post was not to be expected; and, if it should occur, there was no position in which he could do his work of which safety could be predicated. He had a right to expect that the hammer would not fall, and the jury might find that he was in the exercise of ordinary care.

Whether he had assumed the risk of injury from the accidental fall of the driving hammer is a different...