Shea v. Mcevoy

• Decision Date: 26 February 1915
• Citation: 107 N.E. 945,220 Mass. 239
• Parties: SHEA v. McEVOY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 239

107 N.E. 945

SHEA v. McEVOY.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1915

COUNSEL

T. J Shea, of Boston, for plaintiff.

Sawyer Hardy, Stone & Morrison, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.

OPINION

CROSBY J.

The plaintiff's intestate, a minor 13 years of age, was killed on October 15, 1910. This action is brought to recover damages for the death without conscious suffering of the intestate. St. 1907, c. 375. The deceased was the son of the plaintiff and lived with his parents on the first floor of a three-tenement house owned by the defendant. The second floor was occupied by a family named Lambert, and the third or top floor was occupied by one Miles and his family.

There was evidence that the cellar was divided into parts for the different tenants, and that the tenants reached the respective portions of the cellar used and occupied by them by means of a common passageway; that in order to go to Shea's cellar it was necessary to pass by an elevator, or dumb-waiter, which ran from the cellar to the tenement on the third floor. The plaintiff's intestate was killed by reason of this elevator or dumb-waiter falling upon him while he was in the passageway in the cellar. The elevator of dumb-waiter consisted of a box or car about 30 inches wide 24 inches deep and 38 inches high, to the top of which was attached a rope which ran over a pulley wheel at the top of the shaft (in which the elevator was operated) above the third floor, the other end of the rope being attached to a weight which hung on one side of the shaft, which weight was hoisted or lowered as the car or box was moved. The elevator weighed about 50 pounds; the weight was of iron, 18 inches long by 9 or 10 inches wide, and 2 inches thick. The hoist rope was an inch in diameter. Another rope was fastened to the bottom of the box or elevator for the purpose of hauling it down. It was raised and lowered entirely by hand. The shaft ran from the cellar floor up through the house, to a point above the third floor. There were openings from the shaft into both the second and third floor tenements, but there was no opening from the shaft into the first or ground floor. The front of the shaft in the cellar was entirely open for a distance of about 6 1/2 feet above the bottom of the shaft; the bottom of the shaft and the cellar floor were on the same level.

There was evidence that on the night of the accident the boy was sent by his mother to the cellar to get some wood and coal; that when he went to the cellar there was a rope which extended from the elevator shaft across the passageway to the bulkhead steps, where it was tied. There was some evidence to show that this rope had been placed there by a boy named Miles, who lived on the top floor. There was also evidence that the plaintiff's intestate, under the direction of his mother, cut the hoist rope, causing the elevator to fall upon him. On the other hand, there was other evidence that the rope was not cut or interfered with, but that as the boy was in the passageway opposite the opening at the bottom of the shaft, a rumbling sound above was heard, and the elevator fell, striking the boy and causing the injuries from which he died within a short time.

It could not have been ruled that the elevator was not furnished by the defendant for the common use...