Carriere v. Merrick Lumber Co.

203 Mass. 322 | Mass. | 1909

Rugg, J.

The plaintiff had worked for the defendant fifteen years in its lumber yard, piling lumber of all kinds. The evidence was conflicting, but a jury might have found that in the forenoon of June 11, 1906, the plaintiff and another workman were directed by one Guy, a superintendent within the employers’ liability act, one of whose duties was to see that the lumber was properly piled, to come with him and be shown where to pile lumber; that there was a long shed covered with a roof but open on the sides and divided into spaces, called bays, for the piling of various grades of lumber; that they came to a bay in which were three tiers of planks, and, there being more room in it, Guy said, “You got to pile on that bay, too.” To which the plaintiff replied, “ That pile is pretty high,” and being then several feet away started toward the pile, whereupon Guy said, “Never mind that pile, it is all right and safe. Come; I will show you some other pile.” Thereupon the plaintiff did not examine the pile, but went with Guy, and was engaged about his work elsewhere until after noon, when he returned to the bay, as to which the conversation of the morning had occurred, to pile lumber in it, and on going into it with a plank, one tier of lumber about nine feet in height fell on him, causing injuries; that it was customary in the defendant’s yard, when tiers were piled as high as this in a bay only partially filled, to use cross-pieces to bind the tiers together, and that there were no cross-pieces on the tiers in this bay; that lumber had been in this bay for several weeks, and some had been taken out a week before, and there was nothing to show that any had been taken out or put in since; that men were at work about the yard from time to time straightening up piles of lumber so that they would be safe.

There were sufficient circumstances from which the negligence of the defendant’s superintendent might have been inferred. The defendant was bound generally to furnish a reasonably safe place for the plaintiff to work, and the duty of its superintendent may have been found to include a general inspection of the piles of lumber to see that they were safe and continued to remain so. His assurance to the plaintiff that the pile was safe was unwarranted by the facts, as he might readily have discovered from examination, which would have revealed a high tier of planks without the usual ties to bind it to the other tiers for support. This fact, together with the fall of the pile a few hours later, with no intervening change in its condition shown, were enough to support the conclusion that its state in the morning was such as to indicate danger to the trained eye of one who knew that, when he gave assurance of safety, there went with it not merely the expression of opinion from one equal to another equal, but the authority of one in a higher position who had a right to compel obedience from one in lower position. Lammi v. Milford Pink Granite Quarries, 196 Mass. 336. Chiappini v. Fitzgerald, 191 Mass. 598. Gile v. J. W. Bishop Co. 184 Mass. 413.

A more difficult question arises as to the due care of the plaintiff. He was an experienced man, and knew the fluctuations in the quantity of lumber in the various bays and the likelihood that they might become dangerous, and that men were frequently at work straightening them up. In the absence of any information from the superintendent, it was his duty to inspect with care each bay before going into it, in order to ascertain whether it was safe. He knew all the hazards of the work as well as anybody, and commonly, if harm came to him, it would have been due either to the ordinary risks of the business, which by his contract of employment he assumed, or to his own failure to look out for himself. But the circumstances on the day of the accident might have been found to be so different as to establish for him the care of a reasonably prudent man without all these precautions. The evidence that he was being directed where to pile lumber, not where to work in straightening it, and, on suggesting that the place was in close proximity to a high tier, was told by the superintendent that it was safe, and ordered to proceed to another place, might have justified a reliance upon the word of his superior and a relaxation of the personal observation otherwise required of him. Even if he thought that the pile was so high that it was liable to fall, he still may have been excused in yielding somewhat of his own view and accepting that of the representative of the defendant, especially in face of his ignorance as to whether the tier was braced. An assurance of safety by a superintendent has usually been held to be such a consideration as to render the due care of a work-' man relying upon it a question of fact. While this may not be a universal rule (see Lavelle v. Dunn-Green Leather Co. 194 Mass. 294), the present case is such that the count alleging negligence of the defendant’s superintendent should have been submitted to the jury. That the assurance was not instantly acted upon is rather a detail to be weighed with all the other evidence than a decisive factor against the plaintiff. McKee v. Tourtellotte, 167 Mass. 69. Burgess v. Davis Sulphur Ore Co. 165 Mass. 71. 0 ’Brien v. Nute-Hallett Co. 177 Mass. 422. Lord v. Wakefield., 185 Mass. 214. Mahoney v. Bay State Pink Granite Co. 184 Mass. 287. Berube v. Horton, 199 Mass. 421. Denning v. Gould, 157 Mass. 563. Anderson v. Duckworth, 162 Mass. 251. Malcolm v. Fuller, 152 Mass. 160. Tanner v. New York, New Haven, & Hartford Railroad, 180 Mass. 572. Cavagnaro v. Clark, 171 Mass. 359. The authorities relied upon by the defendant in this regard are distinguishable. In Davis v. Forbes, 171 Mass. 548, the plaintiff did not rely upon the assurance but upon an experiment made before his own eyes. In Lowcock v. Franklin Paper Co. 169 Mass. 313, the assurance was not directed to the particular situation which caused the injury. In Whittaker v. Bent, 167 Mass. 588, the assurance was a colloquialism between fellow workmen.

The only exception as to evidence argued by the plaintiff cannot be sustained. The question, when first asked and excluded, was not accompanied by an offer of proof, and when the offer was made after the defendant’s case was closed might have been excluded as matter of discretion. But, if it had been seasonably proffered, evidence was competent to the effect that during the crucial conversation with the defendant’s superintendent, after having said the pile was pretty high, the plaintiff started toward the bin “ to see if it was a good pile.” It bore upon the issue of the plaintiff’s due care in relying upon the assurance of safety given him by the superintendent, and in giving up his own investigation when directed to go with his superior. It was in substance testimony as to the intent accompanying the act of entering the bin. Where one’s state of mind is important, the person may himself testify about it. Toole v. Crafts, 193 Mass. 110. Sherman v. Sherman , 193 Mass. 400.

. Exceptions sustained.