Patrick v. Pote

• Decision Date: 10 March 1875
• Citation: 117 Mass. 297
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Samuel Patrick v. James H. Pote & another

117 Mass. 297

Samuel Patrick v. James H. Pote & another

Supreme Court of Massachusetts

March 10, 1875

[Syllabus Material] [Syllabus Material]

Suffolk. Tort for personal injuries sustained by the plaintiff from the falling of a bale of goods upon him from a wagon, in charge of the defendants' servant, in a public street in the city of Boston. Trial in this court before Morton, J who allowed a bill of exceptions in substance as follows:

The defendants were truckmen and teamsters. The plaintiff was foreman of Elder & Co., other truckmen and teamsters engaged in their behalf at the store of one Wright on Devonshire Street. The defendants' wagon, in charge of one Brown as teamster, was loaded with bales set on end in the wagon and on the tail-board.

The plaintiff testified as follows: "I was engaged in moving goods, and was injured by the team of the defendants, driven by Brown. Team was backed up. Took truck to move bale of goods from sidewalk, which was right behind defendants' team as backed up. Bales were bound on defendants' team. Brown unfastened rope, and two bales fell off, one falling on my leg as I was stooping down to load a case of goods on my truck. Received no warning -- no outcry or warning by Brown. Bird directed me to remove the case. Did not see Brown back up. Saw the load after it was backed up. Knew it was backed up to unload. Was a proper place to unload. Saw the bales that fell before they fell. They leaned off the wagon. Saw rope around them that held them on until the rope was unfastened. Brown went and unhitched rope. He was on his team when I first saw him. Rope had got to be unfastened before bales would come off. Brown unloaded in usual way. Did not watch to see him unfasten the rope. He was about a minute unfastening. No one was with him. Bird was standing talking with clerk, back to him; Brown on nigh side of wagon, not in sight of him. Can't say how large load was -- wagon full. I stood on nigh corner of team. Wagon was obliquely to sidewalk, not square to it. Did not speak to Brown when he was unhitching, nor look to see whether he was unfastening the rope, or was engaged in unfastening the rope when he went to get the case behind his team, and while he was loading the case. Did not see Brown pass round the wagon."

Thomas H. Bird testified: "Was shipping-clerk for Wright & Co. Was present when plaintiff was injured. Stood on Devonshire Street. Saw defendants' team back up. Bales fell within minute after team backed up. Plaintiff was just putting case on truck. He was standing back to team when bales fell off. Turned when they fell. Did not see Brown when the team backed up. Heard no warning or notice given by Brown when bales fell." Cross-examined. "Back was turned to team when bale fell. Team there about one minute before I turned. Walked a short distance. Gave Brown orders where to back up, and he backed up where I told him to. Gave orders to Patrick after team backed up to remove case. When he backed up, can't say whether he was on team or not. Did not see Brown after I gave orders to him to back up until after accident. Did not tell Brown that plaintiff was there or was going to remove case. Brown did not unfasten rope in sight of plaintiff. Patrick could not see Brown when he unfastened the rope. The bales tipped back on the tail-board. Loaded in usual way."

Wm. E. Norwood testified: "I saw accident. Brown backed up; remained a short time; then went round to loose his rope, and the bale fell; Brown gave no notice or warning. Brown was not in sight of Patrick."

Emery Brown testified for the defendants: "Was teamster for defendants. Was loaded at the time of the accident with bales of goods, brought from railroad. Carried them to Wright's. Saw Patrick, and he told me where to back up and unload -- the only man I saw. Plaintiff was on the sidewalk. Backed up where he said. Bird had usually told me where. Then commenced unbinding load. Was on team till I backed up. Unfastened the rope in two places on one side then went round to hind end of wagon and unfastened the rope on the other side, and two bales fell off. Did not know plaintiff was there. Was not there, and I did not see him anywhere when I went round the end of the wagon. No one told me to wait for removal of the case. Was one case on sidewalk in rear of wagon when I backed up. Did not know he was there, or was going there to remove the case. First I knew of his being there was when he hollaed, upon the bale falling on him. Stood backward to the hind end when I unfastened the rope. Plaintiff was nowheres near when he told me to back up. Been in the habit of loading goods. Was loaded in the usual manner. No one was behind the wagon when I started to unload." Cross-examined. "Backed right up to sidewalk: got off. Spoke to no one,...