Sullivan v. New Bedford Gas & Edison Light Co.

• Decision Date: 26 February 1906
• Citation: 190 Mass. 288,76 N.E. 1048
• Parties: SULLIVAN v. NEW BEDFORD GAS & EDISON LIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 288

76 N.E. 1048

SULLIVAN v. NEW BEDFORD GAS & EDISON LIGHT CO.

Supreme Judicial Court of Massachusetts, Bristol.

February 26, 1906

COUNSEL

Jas P. Doran and Edwd. T. Bannon, for plaintiff.

Chas W. Clifford and Oliver Prescott, Jr., for defendant.

OPINION

LORING J.

The bill of exceptions in this case does not give an intelligible explanation in all respects of the machinery here in question. The plaintiff was employed by one Mahoney to work in unloading a cargo of coal from a barge alongside of the defendant's wharf in New Bedford. It appeared that the usual method of unloading coal cargoes is to fill a tub, then hoist it on a derrick or some apparatus in the nature of a derrick, and swing it in by a rope in the hands of a guy man until it is over the coal pocket where it is to be discharged, when another man, called a dumper, upsets the tub. The tub is then pulled back by the guy man until over the hatch in the coal vessel, when it is lowered into the hold. In the case at bar the tubs used by the defendant were heavy tubs of iron, 30 inches deep and 36 inches in width with wheels in the bottom of them. The defendant, in its brief, says they had three. These wheels were boxed in and apparently were used to wheel the tubs from place to place. Just when it became necessary to whell them about in connection with the defendant's automatic apparatus hereinafter described, if at all, does not appear. On the back of the tub was a latch which was automatically knocked out when the tub was over the coal pocket, whereupon the tub turned over bottom up and discharged its load of coal. The tub was fitted with a balance weight intended to cause it to right itself, and upon its doing so the latch would catch again, and hold it bottom down and mouth up. It was then run back until over the hold of the vessel, when it was lowered into the hold to receive a new load.

It is stated in the bill of exceptions that 'the tub is operated by a cable passing over a movable truck which travels on two parallel tracks forming an inclined plane from the dumping place over the pocket down to a position over the hold of the barge.' Just what this means we do not know. The plaintiff was hired by Mahoney on the day of the accident to take the place of a coal shoveler who had been taken with cramps. He was told by Mahoney to go into the hold of the barge, where he was set to work with Mahoney, shoveling a place for the tub on its return trip. The plaintiff's account of the accident was 'that Mahoney told him to pair off with him (Mahoney), that he took a shovel and scraped the coal away just making room for the tub to come down, and he heard some one holler 'Look out!' and he jumped, and as he did so, something struck him and rendered him unconscious.' It appeared that what hit him was a lump of coal which had got jammed between one of the wheel boxes and the side of the tub and had not fallen out when the tub was upset. One of the plaintiff's witnesses testified 'that, as Mahoney and plaintiff were scraping up coal to make room for the tub, the tub came down the run unlatched and when it came to the forward end of the trolley the jar of the tub shook the lump of coal out of the tub, and it came down and hit the plaintiff on the head; that the tub came down the run mouth down and unlatched.' It appeared from the plaintiff's cross examination that he had worked as a coal shoveler for five different employers in New Bedford that for one of them he had worked for seven or eight years, shoveling coal and doing other work on the coal wharf. At this place, and at another of these places, tubs with boxed-in wheels were in use, and he admitted that there was room enough for a lump of coal to get caught in these other tubs; but he testified that he never had known of coal being wedged in there--that is, between the wheel box and the side of the tub. I was testified to by the plaintiff and others called by him that it is the duty of the dumper when the ordinary method of unloading coal is used, to give warning if there is danger. It also appeared that the defendant's automatic device had been in operation for only 12 or 13 days, all told, before the plaintiff was hurt; that on the day the plaintiff was hurt 'it did not work any different than it had worked every day before; that the tubs sometimes came down latched and sometimes unlatched, and that in this respect, there had been no difference from the beginning of his use of the apparatus; that there was nothing broken or out of repair on the day of the accident.' The plaintiff called a witness who testified that he was 'a boiler maker, and had been engaged in the business 18 years, and had had experience in the making and mending of coal tubs; that he had had experience in calculating the proportion of weight in the adjustment of tubs; that the ordinary tub is made so that, after being dumped, it swings back again and catches; that this is done by the counterbalance on the back of the tub; that these tubs of the coal company are balanced the same as the ordinary tubs; that the proper position when empty would by bottom down and mouth up.' He further testified that, 'assuming that an iron tub weighing about 1,200 pounds, three feet square and three feet deep, such a tub as is used for dumping coal from a barge, and intended to operate in such a manner that...