Sullivan v. Reed Foundry Co.

• Decision Date: 03 January 1911
• Citation: Sullivan v. Reed Foundry Co., 207 Mass. 280, 93 N.E. 576 (Mass. 1911)
• Parties: SULLIVAN v. REED FOUNDRY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 280

93 N.E. 576

SULLIVAN v. REED FOUNDRY CO.

Supreme Judicial Court of Massachusetts, Worcester.

January 3, 1911

COUNSEL

D. I. Walsh, T. L. Walsh, and C. B. O'Toole for plaintiff.

C. C Milton, G. A. Gaskill, and F. L. Riley, for defendant.

OPINION

HAMMOND J.

While the plaintiff was at work for the defendant upon a heavy casting suspended by a hook and chain, the hook broke and the casting fell upon and injured him.Of the five counts in the declaration the case went to the jury upon only the second third and fourth.The second was under the statute and charged a defect in the ways, works and machinery; the third, also under the statute, charged negligence of a superintendent; while the fourth was at common law, charging that the defendant furnished improper, dangerous and defective machinery.The jury found on the second count for the defendant, and on the third and fourth counts for the plaintiff; and the case is before us upon exceptions taken by the defendant at the trial.

The contention of the plaintiff was that the breaking of the hook was due either to its own weakness or to a sudden strain brought upon it by a slipping of the casting in the chain, or in other words that the cause of the accident was either a weak hook or an improper hitch.The second and fourth counts seem to be based upon the former theory and the third, in part at least, upon the latter.The defendant does not argue, as indeed it could not truly, that there was no evidence of the due care of the plaintiff or that he assumed the risk.

It is strenuously urged however that there was no evidence that the hook was weak.So far as respects the testimony of the experts and of those who had made a personal examination of the hook, it must be said that there is a very strong case made out for the defendant on this point.But after all there was some conflict in this part of the evidence, and it was for the jury to say what credit they would give to Miller, the expert called by the plaintiff.Moreover, one salient fact must not be lost sight of.The hook broke while holding a weight much less than a hook of that size, if sound, should have held.That fact unexplained is of itself evidence of a defective condition.Doherty v. Booth,200 Mass. 522, 86 N.E. 945, and cases cited.

And the fact, if it be a fact, that the verdict for the defendant on the second count shows that the jury found that the hook was not...