216 Mass. 26 | Mass. | 1913
This is an action of tort to recover damages for personal injuries received by the plaintiff in consequence, as alleged, of the defendant’s negligently suffering “a large and heavy plate glass encased in a wooden box to fall upon the leg and foot of the plaintiff. ” Specifications were filed by the plaintiff alleging that the defendant did not furnish suitable instrumentalities and appliances for safely unloading the box, and did not properly manage the instrumentalities and appliances furnished in that he manipulated certain guy ropes in such a manner as to allow the box to fall and injure the plaintiff. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge
The accident occurred while the plaintiff and the defendant and a man by the name of Babb and another by the name of Loomis and an expressman were unloading the box at a block belonging to the defendant where the glass was to be set. The defendant was under no duty to the plaintiff to furnish suitable instrumentalities and appliances for unloading the box unless the relation of master and servant existed between him and the plaintiff. And the first question is whether there was evidence warranting a finding that such relation existed. We are of opinion that there was. The plaintiff was in the general employ of one Green, a contractor and builder, under whom he had been working on the block which the defendant was repairing and changing and in the front of which the glass was to be set. The plaintiff was not at work on the block at the time of the accident, but in another place from which, pursuant, as could be found, to a previous conversation of the defendant over the telephone with Green, the defendant procured the plaintiff and a fellow workman to come to the block to assist him in unloading the glass. The defendant bought the glass and arranged with the expressman for its delivery at the block, and there was nothing to show, or at least there was evidence warranting a finding that there was nothing to show
We are also of opinion that there was evidence warranting a finding that the plaintiff was in the exercise of due care and that it could not be ruled as matter of law that he assumed the risk or that the defendant was not negligent.
The plaintiff was a carpenter and was not accustomed to unload glass and objected to having anything to do with unloading the box when asked by the defendant to help him. He cannot be said to have been wanting in due care because he undertook to assist the defendant in unloading the box. There was nothing dangerous per se in work of that nature; and being, as there was evidence tending to show that he was, under the supervision and control of the defendant, he naturally would expect to be governed by his directions even though they might not in all respects commend themselves to his own judgment. In addition to that he would have a right to rely to some extent at least upon his superior. To what extent he could properly do
Neither could it be ruled as matter of law that there was no evidence of negligence on the part of the defendant. The jury could have found, and for aught that appears they did find, that the, appliances furnished by the defendant were insufficient and also that there were not men enough. There was evidence tending to show that the defendant ordered of the express company two extra men with planks and rollers to accompany the wagon containing the box and that they were not with it when it came, and that the defendant proceeded to unload the box without them. There was also evidence tending to show that he had been told by Mr. Green that it “would take six good men” to unload the glass; that there were no braces there to keep the box upright; that the method which was used of keeping it upright with ropes or guys was insecure; and that Barr should not have been directed, as there was evidence tending to show that he was by the defendant, to leave the place where he was at the rear end of the glass. From this and other evidence the jury were well warranted in finding that the defendant was negligent.
It follows from what we have said that the rulings requested were rightly refused.
Exceptions overruled.
Hall, J.