Poor v. Sears

• Decision Date: 26 October 1891
• Citation: 28 N.E. 1046,154 Mass. 539
• Parties: POOR v. SEARS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 539

28 N.E. 1046

POOR v. SEARS.

Supreme Judicial Court of Massachusetts, Suffolk.

October 26, 1891

COUNSEL

Gaston & Whitney and C.E. Todd, for plaintiff.

L.S Dabney and H. Wheeler, for defendant.

OPINION

MORTON J.

The ruling of the court that, in consequence of the lease to Rockwell & Churchill, the defendant was not liable to the plaintiff by reason of his ownership of the premises, was, to say the least, sufficiently favorable to the defendant. We need not consider carefully whether, under the terms of the lease the shafting, belting, and pulleys by means of which power was transmitted from the engine in the basement of 41 Arch street to 39 Arch street and the building beyond belonging to Mr. Amory, remained in the control and were to be kept in repair by the defendant, or passed under the demise to Rockwell & Churchill, and were to be kept in repair by them. The plaintiff's case does not depend on that question, but rests on the proposition that the defendant having undertaken for a consideration to transmit to 39 Arch street, and the building beyond, power for the use of the tenants in those buildings from the engine operated by him in the basement of his own building, was bound to exercise reasonable care to see that the pulleys and shafting which he used for that purpose were in a suitable condition to perform the work for which he was using them without danger to persons rightfully on the premises and themselves in the exercise of due care; and that if the defendant, or his servants or agents, were negligent in their use of the shafting and pulleys, or their management of the appliances by which power was transmitted from the engine in the basement of 41 Arch street, and the plaintiff, being herself in the exercise of due care and rightfully upon the premises, was injured thereby, then she is entitled to recover of the defendant for the injuries so sustained. In this view of the case, it is immaterial whether, under the terms of the lease, Rockwell & Churchill or the defendant was to keep the belting, shafting, and pulleys in repair. If Rockwell & Churchill were to keep them in repair, and did not, still their negligence did not excuse the defendant for the want of due care on his part. It was his duty, as an ordinarily prudent man, to see that as against persons rightfully on the premises, and in the exercise of due care, the shafting and pulleys which he was using were suitable and safe for the purpose, and that the appliances used by him for transmitting power were properly managed by his servants; and he cannot excuse his own want of care, or that of his servants, by showing that Rockwell & Churchill were bound to keep the shafting and pulleys in repair, and that if they had done so the accident to the plaintiff would not have happened. Blesington v. City of Boston, 153 Mass. ----, 26 N.E. 1113, and cases cited. He used them as they were, and he must be held to have taken the risk attending their use. Gill v. Middleton, 105 Mass. 477; Priest v. Nichols, 116 Mass. 401.

These considerations dispose of the 2d, 3d, and 4th requests for rulings by the defendant, and also of his objections to the introduction of the evidence by the plaintiff tending to show that the shaft was not sufficiently supported, and should have had an additional hanger; that a shelf underneath it would have tended to afford protection, and was often placed under shafts similarly located; and that safety would have been promoted by a larger shaft. This testimony bore directly upon the question whether the defendant was justified, as a man of ordinary prudence and care, in using the shaft and pulleys as they were, and was plainly admissible upon that issue. The defendant also objected to the admission of testimony by the plaintiff tending to show that an examination of the broken ends of the shaft was made after its fall, and that there were dark streaks, as though there had been a flaw or previous crack in it, extending from one-third to half-way through. The objection was put on the ground that it was not admissible under the declaration. But it was clearly allowable under the second count. This count was not demurred to, and, though imperfectly drawn, no objection, so far as the exceptions show, was taken to it at the trial. Eaton v. Railroad Co., 129 Mass. 364. The defendant further objected to the testimony on the part of the plaintiff tending to show that after the accident he (the defendant) repaired the stairs where the fall of the shaft broke and damaged them, and caused...