Nye v. Dutton
| Decision Date | 04 March 1905 |
| Citation | 187 Mass. 549,73 N.E. 654 |
| Parties | NYE v. DUTTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Choate, Hall & Stewart and B. M. Fernald, for plaintiff.
Dickson & Knowles and Wm. B. Sprout, for defendant.
This is an action under St. 1887, p. 900, c. 270, § 2, by the next of kin, namely, the parents, of Waldo E. Nye, to recover for his being instantly killed, or dying without conscious suffering on February 9, 1900, while in the employ of the defendant. We shall assume for the purposes of the case that the plaintiffs were 'dependent upon the wages of the employé,' within the statute, though the evidence on this point is very meager, and shall consider the case upon the merits. The declaration contains two counts, both under St. 1887, p. 899 c. 270. The first alleges a defect in the condition of the ways, works, and machinery, and the second the negligence of a superintendent. At the trial in the superior court, at the close of the evidence for the plaintiffs, the judge directed a verdict for the defendant, and the case is before us on the plaintiffs' exceptions.
The defendant carried on the business of wholesale upholstery supplies at 18 Canal street, Boston, occupying the basement street floor, and four floors above. There was a freight elevator on the Merrimac street side, which ran from the basement to the top floor. The power was electricity. At each floor there was an opening into the elevator well, and a sliding gate or barrier, consisting of two pieces of wood fastened together so as to form a right angle, the short arm being perpendicular and the long arm horizontal across the opening. An automatic device on the elevator snapped into an iron casting fastened to the gate, and when the elevator ascended lifted the gate to the ceiling of each floor. When the elevator passed the ceiling, the gate descended of its own weight. The iron casting on the gate at the fourth floor had been broken a day or two before the accident. One Bingham, who had charge of the whole building, and gave orders to the men, told one Hopkins to go up and fix the gate, and gave him a new iron casting like that put in evidence. Hopkins had been at work for the defendant since the September before the accident and since the November before the accident Hopkins had had charge of the motor operating the elevator, and was in charge of seeing that the elevator was kept properly oiled. Small repairs were done by Hopkins as often as by any one, and this had been his work ever since he had been there. The defendant furnished some tools, namely, files, saw, two or three hammers, screw drivers and bits, for this work. On the day of the accident, Hopkins, after receiving the order from Bingham, went to the fourth floor with the new casting. A portion of the old casting was still fastened to the gate. The casting was attached to the gate by two bolts which passed through the woodwork and through the casting, and it was held in place by nuts on the ends of the bolts. Hopkins first took off the old casting, and took out all the bolts. Then he put one of the bolts through the lower hole, and hung the new casting on it, but without putting on the nut to hold it firmly in place. While Hopkins was at work putting on the casting, Nye came up, and told him to come downstairs to help put some cases on the elevator. He went down, and he and Nye put some cases on the elevator, and went up to the fourth floor. The cases were unloaded. Nye and the elevator went to the basement, and Hopkins resumed his work. He intended slightly to lower the casting by putting the upper bolt in the lower hole, and this made it necessary for him to bore a new hole in the gate for the lower bolt. Without securing the new casting through which h...
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