Poulin v. H. A. Tobey Lumber Corp.
| Decision Date | 05 March 1958 |
| Parties | Agnes POULIN et al. v. H. A. TOBEY LUMBER CORP. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Cornelius R. Rosdahl, Malden, for plaintiffs.
William J. Conboy, West Roxbury, for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.
This is an action of tort brought in a District Court by Mrs. Poulin for personal injuries to her and by her husband for consequential damages. She was walking on the sidewalk on Exchange Street, Malden, when she was struck by pieces of lumber which fell from a passing truck and injured her. A demand by the plaintiffs under G.L. (Ter.Ed.) c. 231, § 69, as appearing in St.1946, c. 450, for admission of material facts, established that at the time of the accident the defendant's truck was being operated by an employee of the defendant on the defendant's business. There was admitted in evidence a report of a conversation between a police officer and the operator of the truck in which the operator 'said he had made a left turn from Commercial Street into Exchange Street when his front rope holding a load of lumber snapped and spilled the lumber over the street and sidewalk,' knocking down a pedestrian 'by the flying lumber.'
The defendant requested the trial judge to rule that the 'evidence is insufficient to warrant a finding that the defendant was negligent.' The ruling was refused and the judge found for the plaintiffs. Upon report, the Appellate Division vacated the finding and ordered judgments for the defendant. The decision held that the case was not one which warranted a finding of negligence.
The police officer's report was admitted generally and apparently without objection that it was hearsay. It is entitled to full probative force as a statement of the circumstances (DuBois v. Powdrell, 271 Mass. 394, 397-398, 171 N.E. 474; Pataskas v. Judeikis, 327 Mass. 258, 260, 98 N.E.2d 265) even if upon objection it might have been excluded as not binding the defendant as an admission. Compare Parsons v. Dwightstate Co., 301 Mass. 324, 327, 17 N.E.2d 197, 118 A.L.R. 1099; Ferguson v. Ashkenazy, 307 Mass. 197, 203, 29 N.E.2d 828; Barrett v. Wood Realty, Inc., 334 Mass. 370, 374, 135 N.E.2d 660.
From the evidence the trial judge was warranted in finding that a truck carrying a load of lumber was driven around a corner with sufficient speed to cause a rope holding the lumber to break and the lumber to spill over the street and sidewalk with sufficient force to cause a piece of flying lumber to knock down Mrs. Poulin. From these facts, the trial judge reasonably could infer (a) that the lumber was improperly secured, or (b) that a defective or inadequate rope had been used, or (c) that the truck's speed was such that excessive centrifugal force was created, or (d) a combination of these circumstances. Obviously the truck and its contents were wholly within the control of the defendant and in no way within that of Mrs. Poulin. There was no evidence of contributory negligence.
'The plaintiff was not required to exclude all causes except the defendant's negligence and it was sufficient if upon the * * * evidence there was a greater likelihood that the accident was due to [its] negligence rather than to some other cause.' See DiRoberto v. Lagasse, 336 Mass. ----, 145 N.E.2d 834, 836, and cases cited. The disintegration of a load of lumber, while being transported through the street by motor truck, with such violence as to produce the events described in the police report leads to a rational inference that it was due to the negligence of the defendant in one or more of the particulars suggested above. See Weiss v. Republic Pipe & Supply Corp., 335 Mass. 422, 140 N.E.2d 657, and cases there reviewed. It was open to the trial judge on the basis of his general experience to find that the contents of a lumber truck, loaded and secured with the care required prior to taking it through the public streets, do not come apart in such a manner. The plaintiffs might appropriately have attempted to prove in considerably more...
To continue reading
Request your trial
-
Evangelio v. Metropolitan Bottling Co.
...included within it by the common understanding. See DiRoberto v. Lagasse, 336 Mass. 309, 145 N.E.2d 834; Poulin v. H. A. Tobey Lumber Corp., 337 Mass. 146, 148 N.E.2d 277 and cases cited; Fitchburg Gas & Elec. Light Co. v. Samuel Evans Const. Co., Inc., Mass., 157 N.E.2d 529. This has been ......
-
LeBlanc v. Ford Motor Co.
...958, 184 N.Y.S.2d 835, 157 N.E.2d 713. See Pelland v. D'Allesandro, 321 Mass. 387, 389, 73 N.E.2d 590; Poulin v. H. A. Tobey Lumber Corp., 337 Mass. 146, 148-149, 148 N.E.2d 277; Brennan v. Arlington Gas Light Co., 341 Mass. 679, 683, 171 N.E.2d 838. The Yardley case did not relieve LeBlanc......
-
Coyne v. John S. Tilley Co., Inc.
...can be relied upon to conclude that the ladder leg would not have collapsed without negligence. Poulin v. H. A. Tobey Lumber Corp., 337 Mass. 146, 148--149, 148 N.E.2d 277 (1958); Evangelio v. Metropolitan Bottling Co., Inc., 339 Mass. 177, 182, 158 N.E.2d 342 (1959). An aluminum stepladder......
-
Krinsky v. Pilgrim Trust Co.
...v. Herz Mfg. Corp., 323 Mass. 138, 143, 80 N.E.2d 484; Pataskas v. Judeikis, 327 Mass. 258, 260, 98 N.E.2d 265; Poulin v. H. A. Tobey Lumber Corp., Mass., 148 N.E.2d 277. The plaintiff submitted a notice to admit facts under G.L. (Ter.Ed.) c. 231, § 69, as amended by St.1946, c. 450. The pl......