242 Mass. 386 | Mass. | 1922
The deceased employee, J. Raymond Foster, in the course of his employment by the R. H. White Company as a stock boy, was sent on an errand from the second to the fourth floor of the employer’s store. His most convenient route was by a stairway, beside an elevator well within which a heavy iron counterweight ran up and down in grooves. A wainscot about four and one-half feet in height separated the well from the stairway, and the distance between the latter and the weight, when the weight passed by it, was three inches. At one time a metal grille about eighteen inches wide had been placed in the opening above the wainscot, but it had been removed before the accident. The width of the opening was about three feet and it extended to the ceiling. The failure completely to enclose the elevator well was a violation of the regulations adopted under St. 1913, c. 806. See G. L. c. 143, §§ 65-68.
There were no eye-witnesses to the accident. A terrible crash and a yell were heard and the elevator jarred. Afterwards one side of the weight was out of its wooden grooves, one of which was broken, and there were marks on the top of the wainscot. The employee was found lying with his head on the lower step and his feet on the second or third step. The finding that his death was caused by crushing injuries to his head and neck received from the counterweight was clearly justified.
The decision of the single member of the Industrial Accident Board was that the condition was so dangerous and obvious that the boy, who was sixteen years old and six feet two inches in height,
It is not known what the employee was actually doing at the time of the accident; that is left to surmise, speculation, and conjecture. The theory that the injury was received from a cause outside the employment is as consistent with the facts as is the supposition that it arose out of the performance of something connected with the employee’s service. It is not sufficient that a belief is warranted that it was more likely to occur in one way than in another unless some facts justify that conclusion. Even if the assumption that the employee fell on the stairs and that in falling his head came within the opening is more rational than that he voluntarily thrust his head into a place of danger from idle curiosity or other reason, this assumption cannot take the place of evidence. To prevail, the claimants must go further, and although tie foundation may be weak, it must affirmatively support a finding that the injury in fact was received from a cause arising from the employment. This it did not do. Sponatski’s Case, 220 Mass. 526. Savage’s Case, 222 Mass. 205. Sanderson’s Case, 224 Mass. 558. Dube’s Case, 226 Mass. 591. McMahon’s Case, 236 Mass. 473.
Von Ette’s Case, 223 Mass. 56, does not govern. There the finding in favor of the dependent was supported because in the absence of evidence of suicide the presumption against the commission of a crime was sufficient to eliminate all causes except those which might have been found to have arisen out of the employment.
The employer’s violation of the rules and regulations established for the maintenance of elevators sheds no light upon the manner in which the employee’s head got within the opening; it merely furnished the opportunity.
We are of opinion that the evidence did not warrant a decree for the payment of compensation and it must be reversed.
So ordered.
