Moylon v. D.S. McDonald Co.

• Decision Date: 23 June 1905
• Citation: 188 Mass. 499,74 N.E. 929
• Parties: MOYLON v. D. S. McDONALD CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 499

74 N.E. 929

MOYLON v. D. S. McDONALD CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1905

COUNSEL

J. J. Feely and Roger Clapp, for plaintiff.

Dickson & Knowles, for defendant.

OPINION

BRALEY, J.

This is an action of tort at common law to recover damages for personal injuries suffered by the plaintiff, a boy 14 years of age, while in the defendant's employment. In the superior court, upon all the evidence, a verdict in its favor having been ordered and returned, the case is before us on his exceptions to the ruling.

In the performance of his work he was directed by the superintendent to use a freight elevator that ran between the different floors of the defendant's building. While using it, his foot became jammed between the side of the car and the top of the jamb of a door that opened from the elevator well into the dining room. It is the defendant's first contention that there was no substantial evidence of its negligence for the consideration of the jury. See Clark v. Jenkins, 162 Mass. 397, 398, 38 N.E. 974. At the time of the accident according to the plaintiff's testimony he was operating it in the usual way, when, in passing between the second and third floors, there was a violent jerk, the force of which caused him to fall to the floor while his foot slipped over the edge of the car and was caught. On a further description given on cross-examination he said that before being thrown there was a very loud noise that apparently came from underneath the car, followed by its lurching and shaking, and that 'when it began to shake there was a kind of pressure to it.' This description of the accident, and of the working of the car, was followed by the evidence of a mechanical expert called by him, who testified, in substance, that if the elevator and its operating machinery were in proper repair it should not have jerked, or that, if it swayed with the violence described, this was indicative of a defective mechanical condition in the lateral rails or guides on which it ran. An examination of the car and the guides, which were substantially the same after as before the accident, had been made by him, and he found a play of three-quarters of an inch, that in his opinion allowed an improper amount of lateral motion. He also ascertained that the guides were loose, and where they were attached to the walls there were variations in the joints of the short pieces of iron of which they were made. According to his opinion, the looseness of the guides caused an excess of lateral motion, which, combined with the unevenness of the joints, allowed the car to catch if the safety shoes or clutches used for the purpose of gripping the rails in stopping were not exactly even. Whether they were even and in proper working order was an issue of fact on all the evidence. If these clutches caught on the uneven joints when the car was running, they would hold for a longer or shorter time, according to the amount of friction, and, upon being released by the rising of the moving car, it would jump with more or less violence, and render it unsafe. Notwithstanding the evidence of the defendant's witnesses very strongly tended to prove that beyond the ordinary wear from its use, which was not enough to produce the condition claimed, it was safe and ran evenly, the jury were not required to accept this version, but were at liberty to take the plaintiff's statement of what occurred, as well as his description of its condition. Aiken v. Holyoke Street Railway Co., 180 Mass. 8, 12, 61 N.E. 557. If they did, then his evidence, taken in connection with that of his expert, furnished some proof that the car ran irregularly because of the defective condition of the guides. They further could find that if a proper...