Shannon v. Willard
| Decision Date | 02 March 1909 |
| Citation | 201 Mass. 377,87 N.E. 610 |
| Parties | SHANNON v. WILLARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Walter I. Badger and Dickson & Knowles, for plaintiff.
John & Jas. A. Lowell, for defendant.
The jury were warranted in finding the following to be the facts in the case: The plaintiff was a boy 16 years of age. He had been in the defendant's employ some 8 months; but it was not until 3 or 4 days before the day of the accident here complained of that he was sent to work in the part of the factory where this accident occurred. At that time he was told to act as assistant to one Mason in stenciling boilers. On the day of the accident he had been stenciling boilers with Mason, in the shipping room on the third floor of the factory. When this work was done Mason went to the machine shop to get a new stencil, and told the plaintiff to get the elevator up and bring down to the first floor the trucks paint pot, stencil and brushes. The elevator was an ordinary freight elevator, operated by a shipper rope running up through the several floors outside of but close to the elevator well. This shipper rope was on the driveway side of the elevator well, close to one of the two uprights on which the elevator ran. Boilers were stacked up on all four sides of the elevator well, with the exception of a narrow passage, about two feet wide, left between the boilers on the Harvard street side of the elevator. The Harvard street side was at right angles to the shipper rope or driveway side. By reason of the boilers being stacked up on all four sides of the elevator well this two-foot passageway was the only means of getting to the shipper rope. The elevator well was equipped with hatch covers or doors attached to the floor in question by hinges. These doors covered the well hole when the elevator was above or below the floor. They were thrown up against the uprights when the elevator went up, and fell back over the well hole when the elevator went down. When the plaintiff was told to take down his trucks, paint pot, stencils and brushes, he went through this passageway diagonally across the hatch covers or doors which covered the well hole at the time, pulled the shipper rope and turned to go back. At that time he slipped on some oil on the hatch cover on the shipper rope side of the elevator well, and fell. As he tried to get up the ascending elevator threw the covers up and this threw him against the upright. One leg was caught and jammed between the hatch cover and the upright and was not released until a fellow employé sent the elevator down.
The plaintiff testified and the jury could have found that he had used the elevator but three times before the accident, and on each of those three times he had come up on the elevator and gone down on it before it left the floor and therefore that before the day in question he had not seen the hatch covers when they were over the well hole.
The oil on which the plaintiff fell came from a leaky drip pan hung under the sheaves over which the wire rope ran by which the elevator was hung and was hauled up and down. This drip pan was described by one of the plaintiff's witnesses as follows: It was made by the defendant's employés and put up some 6 or 8 months before the accident to the plaintiff. It was made out of a piece of tin turned up about 1 1/2 inches on the four sides, and not soldered together at the corners; and it leaked when put up and had continued to leak ever since. This witness then testified: That 'the elevator door, as he noticed it on his various trips to the third floor, always had oil and dirt on it.' The oil spot on the door began about a foot and a half from the edge of the door, in the center of the well, was from 15 to 18 inches wide, and ran down to the upright near the shipper rope, or within a foot or so of the upright.
The room in question on the third floor was well lighted, but the plaintiff testified 'that it was dark in the elevator well and it was made so by the boilers all around the well.' The plaintiff also testified that 'the elevator moved very slowly,' and there was no testimony contradicting or modifying the fact so testified to.
The plaintiff also testified 'that he never before had seen the doors down, that in going over the trapdoors at the time of the accident he did not see any oil or foreign substance on the door, and no person in the defendant's employ had ever told him that there was any oil or foreign substance on the door.'
The plaintiff went to the jury on a count based on negligence of the defendant in setting him to work in a dangerous place without notifying him of the dangers connected therewith. The presiding judge refused to direct the jury to return a verdict for the defendant. The jury returned a verdict for the plaintiff and the case is here on an exception to that refusal, with an agreement that if the ruling was right judgment should be netered ruling was right judgment should be entered wrong judgment should be entered for the defendant.
The first question to be considered is whether on this evidence it could have been found that the accident was caused by a failure to perform a duty owed by the defendant to the plaintiff.
It is usually said that an employé assumes the risk of the obvious conditions of the building in which he accepts employment. That is true. It is more accurate however to say that an employer is under no duty to an employé to change the obvious condition of the building in which the employé accepts employment. It is pointed out in McCafferty v. Lewando's French Dyeing & Cleansing Co., 194 Mass. 412, 80 N.E. 460, 120 Am. St. Rep. 562, that the principle on which this rule is founded is the same principle on which the rule of caveat emptor is founded in a sale of property, and on which the rule is founded that a landlord is not liable for the ruinous condition of leased premises.
An application of the underlying principle which is almost if not quite an exact parallel is in case of the lease of a tenement including a right to use common passageways which remain in the control of the landlord. In such a case the landlord owes the tenant the duty of keeping the common passageways in the condition in which they appeared to be at the beginning of the lease, as to which see Andrews v. Williamson, 193 Mass. 92, 78 N.E. 737, 118 Am. St. Rep. 452; Domenicis v. Fleisher, 195 Mass. 281, 81 N.E. 191.
Were it not for the oil spot on the elevator covers or doors, it is hard to see why the plaintiff did not have a right to go to the jury for not repairing the drip pan; for although from the description of it given by the plaintiff's witnesses oil must have run out of it if there was any more than a very small quantity in it, yet it did not appear that there was oil in it all the time. It was entirely possible that oil would not be running out of it when the time came for the plaintiff to inspect the premises with a view to accepting employment in them; and if oil was not in fact dropping from the pan then, it would be hard to say as matter of law that the faulty construction of the pan was obvious to an employé making an inspection of the building with a view to deciding whether he would or would not work in it.
But we are of opinion that as matter of law on the evidence the oil spot on the cover was obvious and for that reason the defendant owed no duty for it or for the faulty construction of the drip pan which produced it.
This case does not come within Dene v. Arnold Print Works, 181 Mass. 560, 64 N.E. 203, Murphy v. American Rubber Co., 159 Mass. 266, 34 N.E. 268, and Tinkham v. Sawyer, 153 Mass. 485, 27 N.E. 6. There the plaintiff accepted work on or around machinery which meant that oil would of necessity be used where he worked, and that the floor would of necessity be oily. The room where this plaintiff went to work was in a loft used as a shipping room. The fact that the defendant ran a factory for making boilers was of no moment so far as the employment was concerned in the course of which the plaintiff was hurt.
The learned counsel for the plaintiff...
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