Scullane v. Kellogg

• Decision Date: 24 November 1897
• Citation: 169 Mass. 544,48 N.E. 622
• Parties: SCULLANE v. KELLOGG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 544

48 N.E. 622

SCULLANE v. KELLOGG et al.

Supreme Judicial Court of Massachusetts, Hampden.

November 24, 1897

Action of tort by Michael Scullane against P.P Kellogg & Co. to recover damages for personal injuries sustained by plaintiff while in the employ of defendants in their envelope factory. The accident in which plaintiff was injured occurred as follows: He was engaged in loading paper on a large truck, and, together with another employé, was placing the truck on an elevator, when some of the material slipped off, part of it falling in the elevator car and on the floor outside, and a part falling to the bottom of the well. While he and his companion were endeavoring to remedy the mishap, defendant's superintendent, Schofield happened by, and plaintiff left his companion and the superintendent and certain other employés to finish picking up the paper on the floor in the car, and went to recover that which had fallen to the bottom of the well. He testified that he did so at the superintendent's suggestion, but this was flatly denied by the latter. While he was thus engaged. some one descended in the elevator car, and he was caught beneath it in a crouching position. As to the extent of his injuries and medical treatment received by him, and the amount of the expense of his sickness, there was no other evidence than that of the physician that "His back and left shoulder were injured, and there was an abrasion of the skin. Saw him eight times at his house. I saw him eleven times at the office. The left arm was numbed, and there was loss of motion." At the close of the evidence, defendants duly requested the court to rule as follows: "(1) There is no sufficient evidence that the superintendent, Schofield was guilty of any negligence for which defendants are liable which caused or contributed to plaintiff's injuries. (2) If the jury find that the superintendent, Schofield, did not have the conversation with plaintiff which plaintiff says he did, in which he promised plaintiff that he would look out for him, then there is no sufficient evidence that said Schofield was guilty of any negligence which would render defendants liable in this action. (3) Upon the pleadings in evidence, plaintiff is not entitled to recover, because he himself was not in the exercise of due care. (4) Upon the pleadings in evidence plaintiff is not entitled to recover, because his injury was caused by one of the risks of the employment which he voluntarily and appreciatingly assumed. (5) Nothing can be recovered for expenses of sickness or medical attendance." There was a verdict and judgment for plaintiff, and defendants bring exceptions. Exceptions overruled.

COUNSEL

J.B. Carroll and W.H. McClintock, for plaintiff.

Brooks & Hamilton, for defendants.

OPINION

A...