Murphy v. City Coal Co.

• Decision Date: 05 January 1899
• Parties: MURPHY v. CITY COAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 324

52 N.E. 503

MURPHY v. CITY COAL CO.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1899

This was an action of tort. There was testimony tending to show that the plaintiff was injured while in the employ of the defendant, by reason of being caught and jammed between a car used for the transportation of coal from a hopper to bins, in which it was to be deposited for delivery when sold, and a certain apparatus called a "pick-up"; that this car was operated upon a track elevated upon a trestlework above the succession of bins in which the coal was dumped; that the car was propelled by this pick-up when power was communicated to it by the action of a certain apparatus called a "triangle," and located beneath the hopper; that this triangle was connected with the pick-up by means of a rope or cable running over pulleys; that, when loaded at the hopper, the car moved upon this slightly inclined track by force of gravity, until it came in contact with the pick-up, which it pushed to the spot where it was intended to dump the load; that at this spot was stationed on the side of the rail a certain other apparatus, so constructed as to automatically open the sides of the car and empty it of its load; that thereupon the car being thus lightened, was pushed by the pick-up, by reason of the weight of the triangle communicating power to it, for a distance of about 14 feet, and received an impulse that gave it requisite momentum to return to the hopper for reloading that, on the occasion of this accident to the plaintiff, the triangle, a loose plank having been temporarily caught beneath it, failed to work, so that the pick-up did not start the car, and it remained motionless upon the track at the spot where it was unloaded; that thereupon the plaintiff, who was standing at the time on the south side of the track watching the operation of the mechanism, and in a place of safety, inquired of one Rowe, who was standing at the hopper, what the reason was that it did not work, and was told that the trouble must be at his (plaintiff's) end; that, without waiting to ascertain the difficulty, the plaintiff stepped upon the track in the rear of the pick-up, and at once commenced to push the car away from the pick-up; that when the car had moved sufficiently he stepped over the pick-up, between that and the car, and continued to push it along by hand; that at this moment, while the plaintiff was between the pick-up and the car, pushing the latter forward, and some little distance from the pick-up, the defendant's foreman observed the plank under the triangle, and directed one Tabeley to remove the same, so that the triangle would work; that, upon his so doing, the triangle instantly fell, communicated power to the pick-up, through this rope or cable, and caused the pick-up to advance upon the plaintiff, jamming him between it and the car, thus producing the injuries for which he complains.

Before proceeding to his argument, the defendant's counsel submitted certain requests for ruling, in writing, among others the following "If the jury find that the plaintiff engaged to run the car in question and undertook that employment, and if the jury find the liability of the pick-up to injure a person in the situation in which the plaintiff was hurt, to be proven, then that danger was an obvious risk assumed by the plaintiff, for which he cannot recover." The court declined to give this instruction. The defendant also requested the court to instruct the jury that "if they found that the plaintiff, when he asked the cause of the trouble, was standing in a place of safety, and, without waiting to ascertain why the pick-up did not work voluntarily, placed himself in a position of danger, and...