Mucha v. Northeastern Crushed Stone Co.

• Decision Date: 02 January 1941
• Citation: 30 N.E.2d 870,307 Mass. 592
• Parties: MUCHA v. NORTHEASTERN CRUSHED STONE CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 592

30 N.E.2d 870

MUCHA

v.NORTHEASTERN CRUSHED STONE CO., Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 2, 1941.

Exceptions from Superior Court, Middlesex County; D. T. O'Connell, Judge.

Action of tort by Charles Mucha against the Northeastern Crushed Stone Company, Inc., to recover damages for injuries to plaintiff while at work as defendant's employee. Verdict for defendant after recording with leave of a verdict for plaintiff in the sum of $3,300, and plaintiff brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

F. C. Zacharer, of Lowell, for plaintiff.

A. L. Eno, of Lowell, for defendant.

COX, Justice.

This is an action of tort to recover for injuries alleged to have been received by the plaintiff, an employee of the defendant, while at work, by reason of the alleged defective condition of the appliances, tools and equipment that were furnished by the defendant. The motion of the defendant for a directed verdict, seasonably filed, was denied subject to the defendant's exception, but under leave reserved, G.L. (Ter.Ed.) c. 231, § 120, the motion for entry of ‘judgment * * * is [sic] accordance with leave reserved’ was allowed. It is assumed that the entry was of a verdict in accordance with said section 120. The plaintiff's exception to the allowance of the defendant's motion presents the only question.

The plaintiff was in the general employ of the defendant as a blacksmith's helper and laborer. The defendant was not insured under the workmen's compensation act, G.L. (Ter.Ed.) c. 152. Accordingly, under the provisions of section 66 of said chapter, if the plaintiff was injured in the course of his employment, it is no defence in an action to recover damages therefor that the plaintiff was negligent, or had assumed the risk of injury, or was injured by reason of the negligence of a fellow employee. In such case the only question is whether there was any evidence of negligence of the defendant or his servants or agents having causal connection with the injury to the plaintiff. Hutchinson v. Sovrensky, 267 Mass. 5, 6, 165 N.E. 698.

The jury could have found that the defendant, which operated a stone quarry, had purchased a stone crusher from the ‘Dance Co.’ under a conditional sales contract, which provided that the defendant was to transport the crusher and furnish ‘half the help to load from base and place on foundation. * * *’ Title to the crusher was to remain in the seller until the purchase price was paid in full, the last payment to be made ‘when crusher is installed and in good running condition.’ On October 20, 1936, one Dance, an officer of the Dance Company, came to the quarry and, ‘unknown to any officials of the defendant* * *, put on overalls and talked to Frank Kroll * * *’ who was a blacksmith and the plaintiff's foreman. As a result of this talk, Kroll called the plaintiff and said to him ‘* * * we're going to work for this man now.’ Dance told the plaintiff and Kroll what they were to do and all three began to move the crusher into a shed in order to place it on a foundation. Dance told the plaintiff and Kroll to get two pieces of lumber, ‘6 x 12.’ They went together to get the pieces from a pile, and Kroll selected two that were 10 by 4 inches. These pieces were placed underneath the crusher. At the end of the day, during which Kroll and the plaintiff did everything that Dance asked them to do, the crusher had not been placed on the foundation and Dance told them that he would come again the next day. He did not come, but the plaintiff, Kroll and another employee commenced work on the crusher, and, in accordance with instructions from Dance given on the previous day, chain falls were tied to the foundation, and placed around the crusher itself. In some manner not disclosed by the bill of exceptions, a hand jack was inserted between the floor of the trailer truck on which the crusher seems to have been resting, and the timber selected and ‘placed there the day before.’ The plaintiff and the other employee, with their hands on the handle of the jack, were operating it in ‘pump style, that is, moving the handle up and down * * *.’ The crusher, round in shape and weighing seven to eight tons, 9 feet high and 3 to 4 feet in diameter, was raised about 8 inches after about one and a half hour's work when the ‘timber or board which was selected and placed between the jack and the stone crusher * * * suddenly broke and split ‘at the place or edge where the jack was holding it and the stone crusher dropped down * * *’ causing the plaintiff's injury. It could have been found that the defendant's superintendent and general manager, who was not present when the plaintiff was injured, had told Kroll that he was to be in charge of the quarry and workers when he, the superintendent, was absent.

It is unnecessary to determine whether at the time the plaintiff was injured he was the servant, in the legal sense, of the defendant, or was engaged in the work of the Dance Company (see Hooe v. Boston & Northern Street Railway, 187 Mass. 67, 69, 70, 72 N.E. 341), for we are of opinion that the verdict was rightly entered inasmuch as the plaintiff has not sustained the burden of proving that the defendant was negligent.

It is to be borne in mind that the plaintiff's cause of action is based upon the alleged negligence of the defendant in furnishing him with a piece of timber that was defective. It was the duty of the defendant to exercise reasonable care to provide for the plaintiff appliances that were reasonably suitable for his work. Haley v. Lombard, 207 Mass. 545, 548, 93 N.E. 633;McGonigle v. O'Neill, 240 Mass. 262, 263, 133 N.E. 918. See Geloneck v. Dean Steam Pump Co., 165 Mass. 202, 217, 43 N.E. 85. And the burden was on the plaintiff to show affirmatively that the defendant had failed in this duty. It is elementary that if the evidence does not go beyond mere conjecture there is no question for the jury. Saxe v. Walworth Manuf. Co., 191 Mass. 338, 341, 77 N.E. 883,114 Am.St.Rep. 613;Olsen v. New England Fuel & Trasportation Co., 251 Mass. 389, 393, 394, 146 N.E. 656. It seems to be assumed that the timber that broke belonged to the defendant, but even if it did, there is nothing in the evidence to show its age, quality, appearance or condition before it was used. There is no suggestion that it had ever been used before or contained any defect, and no description of its appearance after it had broken. All that appears is that it ‘broke and split at the place or edge where the jack was holding it.’ Compare Dunleavy...