Levesque v. Mills, 222 Mass. 305

Levesque v. Mills

222 Mass. 305 | Mass. | 1915

Carroll, J.

The plaintiff, while in the employ of the defendant as a night fireman, in 1912, was injured by the breaking of a ladder which he was using in the course of his employment. The ladder was made by an employee of the defendant, before the plaintiff entered its employ, and was constantly in use.

*307The plaintiff went to the top of one of the furnaces “to fix a lamp and to fix the gouges on the water column,” and in descending stepped on the second cross-piece or round from the top of the ladder which gave way; he was thrown down and injured. The plaintiff testified that he had no knowledge of any defect in the ladder on the night he was using it, and that it was then dark. There was evidence showing the ladder to be defective and out of repair, and that this fact had been reported to the superintendent, who had promised to secure a new ladder. The jury might have found that it was the duty of the defendant to see to the safety of the ladders and that no inspection was made of them.

The declaration is in three counts: one at common law for defective appliances, one under the statute for negligence of a superintendent, and one for a defect in the ways, works or machinery. There was evidence that the ladder had been adopted by the defendant as an instrument of service, to be used by the firemen while performing their labors, and this use had been acquiesced in by the superintendent. This circumstance, coupled with the facts that the ladder was defective, that the defect was concealed or hidden and that the plaintiff used the ladder in ignorance of its condition, was some evidence for the jury of the defendant’s negligence under both the common law and statutory counts. There was evidence also of the negligence of the superintendent: He knew of the condition of the ladder, and it could be found that he made no attempt to remedy it.

The third request of the plaintiff was given in substance. The judge instructed the jury that, if there was any obvious defect in the ladder, the plaintiff could not recover, and so too, if he used a ladder which he knew, or in the exercise of due care should have known, to be unsuitable.

The fifth request was properly refused. There was evidence that the plaintiff did not know of any defect in the ladder, and it cannot be said as matter of law that he was chargeable with knowledge of its condition.

The seventh request could not have been given. The ladder was in use when the plaintiff became an employee of the defendant, complaints had been made about it, and there was evidence that it was the duty of the engineer May, if there was anything wrong with the ladder, to remedy it. Carroll v. Metropolitan Coal Co. *308189 Mass. 159. Jones v. Pacific Mills, 176 Mass. 354. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. See also St. 1909, c. 363.

There was no error in declining to give the eighth request. As was said in Carroll v. Metropolitan Coal Co., supra, at page 161: “It was the duty of the defendant to .use due care to see that the ladder was in a safe condition; and, while the plaintiff was not thereby relieved from taking proper care himself, still, in passing upon the degree of care required of him, it must be borne in mind that he had the right to assume that the duty had been performed.”

Exceptions overruled.