Toohy v. McLean

• Decision Date: 04 September 1908
• Parties: TOOHY v. McLEAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 466

85 N.E. 578

TOOHY v. McLEAN.

Supreme Judicial Court of Massachusetts, Middlesex.

September 4, 1908

COUNSEL

Augustine J. Daly and Francis J. Carney, for plaintiff.

Walter I. Badger and Wm. Harold Hitchcock, for defendant.

OPINION

LORING J.

The facts which the jury were warranted in finding in this case were as follows:

The plaintiff, a minor, was a tailor boy. Among other things it was his duty to collect clothes to be pressed and to deliver them when that had been done. Between 4 and 5 o'clock in the afternoon of April 25th he came to Ridgely Hall, owned by the defendant, to deliver a suit of clothes to a student living on the fourth floor. He went up in the elevator. This elevator was a small one; the floor of it was about 4 feet by 4 1/2 feet, and its doorway was 2 feet wide. On the left hand of one entering the elevator and at the front end of that side, there was a lever by which the elevator was operated. The elevator was of the kind known as the 'plunger elevator.' It consisted of a car on the top of a piston set in a cylinder. The elevator was raised by water being let into the cylinder beneath the piston, and lowered by water being let out. The valves by which the water was let in and out were operated by the lever already spoken of. This lever was about 2 1/2 feet high, and worked in a slot about 2 inches wide and 8 or 10 inches long. On the side of this slot was a set of teeth to hold the lever where it was put. The lever was released from the teeth by raising a clutch in the handle of the lever. The plaintiff had some 9 or 12 pieces of clothing with him when he reached Ridgely Hall on the afternoon in question. One suit was to be delivered at room 43 on the fourth floor. The plaintiff entered the elevator the elevator boy took him to the fourth floor, left the elevator with him and opened the door of room 43 for him. The elevator boy then went to room 42, at the request of the tenant of that room, to take out an empty trunk, having left the lever a little forward of the center and outside the teeth, with the clutch up and the gate of the elevator well open. The plaintiff placed the 9 or 12 pieces of clothing on the railing of the balusters, took the suit for the tenant of room 43, put it on the bed in his room, and returned to the hall. He took up the remaining 6 to 9 pieces putting the trousers over his right arm or shoulder, running his left hand through the arm holes of the waistcoats and putting the coats over his left arm. Seeing the gate open and the elevator apparently at rest he undertook to enter the elevator. Finding that with the 6 to 9 pieces of clothing he could not walk straight through the 2-foot doorway into the elevator he tried to get in by entering it sideways. It was somewhat dark at the entrance of the elevator at the time. The elevator appeared to be about 4 inches above the floor and to be still. As we have said, he undertook to enter sideways, and 'the next thing he knew he was struck backward and pitched underneath, that is, under the elevator into the elevator well,' to quote his own words.

Another witness testified that the elevator went down and then came up quickly, and that the plaintiff went out and down when it came up. There was evidence that if the lever were pushed forward quickly to its full length, the elevator would go up about 300 feet in a minute.

The elevator had been leaking before the time in question, and the elevator boy had left the lever outside the teeth and a little forward of the center, to offset the leakage; and this was a proper if not the necessary way of keeping the elevator still while there was a leak. An elevator of this kind, when leaking, might appear to be perfectly still; in such a case it moves very slowly, and the...