Rainey v. Gay's Express, Inc.

• Decision Date: 02 March 1960
• Docket Number: No. 5532.,5532.
• Citation: 275 F.2d 450
• Parties: Walter RAINEY, Plaintiff, Appellant, v. GAY'S EXPRESS, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

275 F.2d 450 (1960)

Walter RAINEY, Plaintiff, Appellant, v. GAY'S EXPRESS, INC., Defendant, Appellee.

No. 5532.

United States Court of Appeals First Circuit.

March 2, 1960.

William A. Curran, Providence, R. I., with whom James L. Haley, Ayer, Mass., Kirk Hanson and Sherwood & Clifford, Providence, R. I., were on brief, for appellant.

Christopher W. Sloane, Boston, Mass., with whom Sloane & Walsh, Boston, Mass., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered following a directed verdict for defendant after trial.

Plaintiff-appellant, a citizen of Rhode Island, sued defendant, a New Hampshire corporation with its usual place of business in Massachusetts, for injuries received in a fall from a scaffold in Gardner, Massachusetts. At the close of the evidence the defendant moved for a directed verdict in its favor. The district judge allowed the motion, stating: "The Court feels that there is not sufficient evidence for the jury to pass upon the question as to whether there was negligence here or not. Whatever decision you make (sic) would not be based on inferences, logical inferences, but would be based entirely on guesswork."

The principle to be applied by this court in reviewing the record is:

"* * * In determining whether or not the evidence in a given case is sufficient to take the case to the jury over a motion for directed verdict, the evidence must be viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every inference favorable to him which may be fairly drawn. It is not for the court to weigh the conflicting evidence or to judge the credibility of witnesses. Whenever the evidence is such that fair-minded men may draw different inferences therefrom, and reasonably disagree as to what the verdict should be, the matter is one for the jury. * * *" American Fidelity & Casualty Company v. Drexler, 5 Cir., 1955, 220 F.2d 930, 932-933, quoted in Hobart v. O\'Brien, 1 Cir., 1957, 243 F.2d 735, 741, certiorari denied 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42. See also Metropolitan Coal Company v. Johnson, 1 Cir., 1959, 265 F.2d 173.

The record, in the view most favorable to plaintiff, supports the following version of the occurrences leading to plaintiff's injuries. Plaintiff was one of the painters employed by Arthur Munier Company to paint the exterior of a building in Gardner, Massachusetts. On August 15, 1956 at approximately 11 A.M. plaintiff and two other painters were at work on a scaffolding. The scaffolding was suspended from the roof of the building and hung at a point 4 or 5 inches above a canopy which was over a loading platform. There were four ropes which supported the scaffold. The excess of the northernmost rope hung down over the canopy and was coiled behind a barrel which was in front of the platform. The rope did not touch the platform because the canopy extended beyond the platform. A truck, a tractor-trailer unit, owned by defendant and driven by Walter Mattson, backed into the yard. The truck made a sharp right angle turn, and with its doors open, backed up against the platform, so that the rear of the trailer was squarely against the platform. The tractor, however, remained at a slight angle to the right (from the driver's point of view) or to the south. The driver after descending from the cab went to the platform, saw the rope hanging down, and the barrel, to the north of the rear portion of his truck. The testimony of the driver placed the rope "two and three feet" from the truck, but the driver also testified:

"Q. When you say two to three feet, from what part of your truck do you mean, what part of your truck was it

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