197 Mass. 582 | Mass. | 1908
This was an action of tort against an employer
to recover damages for personal injuries sustained by an employee through the alleged negligence of the defendant. The first question is whether the evidence was sufficient to warrant the jury in finding the defendant negligent.
The facts set out in the bill of exceptions as to the size, shape and construction of the building and the runway are undisputed. The accident was caused by the fall of a barrow loaded with coal from the runway upon the plaintiff.
Upon the evidence the jury were justified in finding that, while a fellow servant of the plaintiff was wheeling the barrow of coal along the runway and was coming down the grade at a point between bin number 5 and bin number 4, the right wheel of the barrow became deflected by a worn place in the plank; that in spite of his efforts the barrow swerved to the left with such force as to go over the left side of the runway and fall upon the plaintiff; and that all this occurred without any negligence on the part of the fellow servant.
The worn place was about eight or ten inches long, one to one and a fourth inches wide, and one fourth to one half an inch in depth in its deepest part; and it is argued by the defendant that even if the worn place was the cause of the deflection of the barrow, it could not have been reasonably anticipated by the defendant that so slight a depression in the plank would cause such deviation, or indeed would have any influence whatever upon the motion of the barrow; and hence that there was no negligence in the defendant.
This contention seems to us sound. The runway was a number of feet in length, over seven feet wide in the clear, and the flooring consisted of two inch spruce plank laid lengthwise of the way. It was intended for rough work. The barrow for whose use the runway was intended weighed about four hundred and fifty pounds and carried from ten to eleven
Exceptions sustained.
