317 Mass. 358 | Mass. | 1944
This is an action of tort to recover for personal injuries sustained by the breaking of wires around a bale of hay prepared by the defendant for delivery to the plaintiff’s employer. A verdict for the plaintiff was recorded under leave reserved by the judge, who subject to the plain-, tiff’s exception allowed a motion of the defendant to enter a verdict in his favor.
According to the bill of exceptions certain facts “were established by the evidence and were not in dispute”: On April 15, 1939, the plaintiff and three other employees of a Dr. Desmond went to Lancaster to a barn, occupied by the defendant, to get a load of hay. Several weeks before Dr. Desmond had purchased the hay for delivery at the barn. Other loads previously had been taken by the plaintiff and his fellow employees, one being on the previous day, at which time the plaintiff and these others had built in the
The testimony as to how this happened was given by Albert and the plaintiff. Albert testified, “We got a bale of hay, and we picked out the heaviest one so the load wouldn’t be too high; this bale maybe weighed one hundred fifty pounds. We picked it up, climbed up on the stairs [of the platform] and were pushing it on the truck, the load was getting high; we had it about shoulder high. He was on the left and I was on the right, and we were just pushing it up when all the wires gave and the bale swung open and hit” the plaintiff. “After they pushed it so far the man on top grabbed it, the witness and the plaintiff kept pushing, and the man on the load pulled it up. All three used their hands and none of them had . . . baling hooks. . . . While they were pushing the bale up, all the wires on the bale broke. He could hear the wires break. There was a cracking noise. He did not notice anything
The plaintiff testified: The bale which broke weighed about one hundred thirty-five pounds. All three wires were around the bale • when they picked it up, one being in the centre and the other two about five inches from the middle one and four or five inches from each end. These were the same in size and style as the wire on the other bales. Albert and the plaintiff picked up the bale twenty to thirty feet from the steps. They each had hold of it all the time and did not drop it or set it down. "Me. and Mr. Albert got up these stairs, walked along," we just raised it up, and we got it up to . . . about even with my chest here, .when it broke off.” They had turned it endwise before raising it. "There was a loud snap, all snapped right open.” There was no warning. Asked how many snaps he testified, "I remember just practically all together.” None of them, including Blair, had a hook. Blair did not take hold of the bale that broke.
The only testimony as to the appearance of the broken wires came from Albert, and offered a wide choice of numerous inconsistent combinations of facts. We attempt to cull out those that might be considered most favorable to the plaintiff. See Kelly v. Railway Express Agency, Inc. 315 Mass. 301, 302. He examined the broken bale. "The hay was spread out and the wires which had held the bale together were lying on the platform. The wire was smaller than telephone wire, black in color, with some rust spots on it. There were three wires whiqh had gone around the bale, all of the same length. Some of it was spliced between the ends. All three wires were broken. . . . Some let go where they had been spliced.” He testified that the number of pieces of wire that he picked up was three, and also that it was six. The first piece was six feet long with rust on it. “It was not all rusty, about half. Just a couple of places where there was a little bit of rust. . . . One or two little rust spots.” He testified that this wire came apart
The defendant testified to the method of baling. The baling machine consisted of a compression chamber, larger at one end than at the other, which the hay entered through the larger end on a moving board or belt. A piston pressed the hay so that, as the small end was approached, it became more tightly compressed. There were successively placed in the chamber two boards with slots which permitted wires to be passed around a bale and fastened. The defendant placed the wires, when slack, lengthwise around the bales and fastened them by putting the hook through the eye. The total of the four sides traversed by the wires was nine feet ten inches. As a bale came out of the chamber, the pressure of the bale drew the wires tight, and it landed on end on platform scales, where it was weighed and then moved by the defendant’s employees to a point on the barn floor. The wires of the uniform length of nine feet six inches, with hook and eye, had been purchased from a reputable concern. The wire’ for “some months” had been stored in the barn, where there was no heat and where it was subject to natural dampness. The defendant knew that under these conditions metal would rust, and that “metal weakens in those spots where it rusts.” He did not
The plaintiff contends that the bale burst because the wire (1) “was not of sufficient strength to hold the pressure,” and (2) “was otherwise defective and was improperly spliced.” We assume without deciding that the defendant owed a duty to the plaintiff in baling the hay, so we do not consider the defendant’s contention that there was no such duty because title to the hay had passed to Dr. Desmond, or the plaintiff’s counter contention that the bale was inherently dangerous.
The contention that the wires were of insufficient strength is unsound. It is .unsupported by evidence. It rests upon the mere occurrence of the mishap. As hereinafter discussed, it is not a situation, as in Doherty v. Booth, 200 Mass. 522, 525, where the jury might infer that the bale could not have burst except by reason of the defendant’s negligence.
The contention that the wires were defective and improperly spliced likewise is untenable. If there was evidence of negligence in using the wire because of rust, there was, nevertheless, no evidence that any reasonably obvious defect in the wire caused the bale to burst. But two pieces were described as rusty, and none as breaking where there was rust. Compare Callaghan v. R. H. White Co. 303 Mass. 413, 416. In fact, the only testimony as to where the wires broke was that one broke — and also did not break —
The judge rightly entered a verdict for the defendant under leave reserved. The case falls within Childs v. American Express Co. 197 Mass. 337, 338-339, Connolly v. Felter, 238 Mass. 305, Starr v. Chafitz, ante, 227, and similar decisions. The cases cited by the plaintiff are distinguishable for various reasons.
Exceptions overruled■