Lanoue v. Nelson

202 Mass. 554 | Mass. | 1909

Hammond, J.

There is no evidence that the order to hoist was not properly executed. Nor is there any evidence that it was given at an improper time. The workmen including the plaintiff were all prepared and needed no further warning. It was given at the time expected, for the purpose intended, and under the circumstances known to all. The only trouble was that it was given when, as contended by the plaintiff, the derrick was in an improper location. Under these circumstances the plaintiff must stand solely upon his right, if any he has, to hold the defendant responsible for the improper location of the derrick.

Even if it be assumed that the derrick was improperly located, — a question not without difficulty, — still the question remains whether, as against this plaintiff, there is any evidence of negligence or failure of duty on the part of the superintendent for which the defendant is answerable.

Upon an examination of the evidence we are of opinion that it would not have warranted a finding for the plaintiff on this issue. He was a carpenter of eighteen years’ experience, during seven of which he had been in the employ of the defendant. And there was no question as to his being a competent and experienced workman. Moreover, for four or five weeks immediately preceding his injury he had been at work on the same kind of work as that in which he was engaged when hurt. The work was comparatively simple in its nature. The beams were not large and he knew that they were liable to swing. It was his duty to guide one end of them into place. He knew thoroughly the location of the derrick and its relation to the place where the beam was to be put. He was upon the wooden horse when the beam was first hoisted and before the rope was readjusted so as to keep the beam nearer level when in the air. He testified upon cross-examination that “ it would have been a safer position for him if the wooden horse had been on the other side of the column farthest from the derrick ” on the top of which his end of the beam was to rest (instead of being between the column and the derrick as it actually was) “ so that when adjusting the beam he could have stood facing the column and derrick and brick wall beyond and in such' position that the timber if it swung would not have struck him.” He also said that “ he knew some positions were more dangerous in which to set the horse than others; that he knew that as the timber swings, things are likely to be hit; and that he stood upon the horse for the purpose of steadying the timber; that when he mounted the horse the second time, he knew that the timber was to be hoisted and went up there for the purpose of guiding the timber and help steady the column, and that it was while he was attempting to do this that the timber pushed him from the horse.” Here then was a competent and experienced mechanic, engaged in a work with which he was perfectly familiar and which was of a comparatively simple nature, all the circumstances being right before his eyes, including the location of the derrick and its relation to the column, the wooden horse, the wall and all other objects the relative position of which were of any materiality. He knew of a position perhaps safe in which the horse might be put to avoid exactly the thing which happened, namely, the timber striking him when it swung. Any warning from the superintendent would have given him no information which he did not already have. Under the circumstances the superintendent had no reason to suppose that, so far as respected a man of the experience and capacity of the plaintiff, there was any occasion to change the location of the derrick or to give him any warning as to his conduct.

Judgment upon the verdict.