154 Mass. 539 | Mass. | 1891
The ruling of the court, that, in consequence of the lease to Rockwell and Churchill, the defendant was not liable to the plaintiff by reason of his ownership of the premises was, to say the least, sufficiently favorable to the defendant. We need not consider carefully whether, under the terms of the lease, the shafting, belting, and pulleys, by means of which power was transmitted from the engine in the basement of 41 Arch Street to 39 Arch Street and the building beyond belonging to Mr. Amory, remained in the control of and were to be kept in repair by the defendant, or passed under the demise to Rockwell and Churchill, and were to be kept in repair by them. The plaintiff’s case does not depend on that question; but rests on the proposition that the defendant, having undertaken for a consideration to transmit to 39 Arch Street and the building beyond power for the use of the tenants in those buildings, from the engine operated by him in the basement of his own building, was bound to exercise reasonable care to see that the pulleys and shafting which he used for that purpose were in a suitable condition to perform the work for which he was using them, without danger to persons rightfully on the premises, and themselves in the exercise of due care; and that if the defendant, or his servants or agents, were negligent in their use of the shafting and pulleys, or their management of the appliances by which power was transmitted from the engine in the basement of 41 Arch Street, and the plaintiff, being herself in the exercise of due care and rightfully upon the premises, was injured thereby, then she is entitled to recover of the defendant for the injuries so sustained. In this view of the case, it is immaterial whether, under the terms of the lease, Rockwell and Churchill or the defendant were to keep the belting, shafting, and pulleys in repair. If Rockwell and Churchill were to keep them in repair, and did not, still their negligence did not excuse the defendant for the want of due care on his part. It was his duty as an ordinarily prudent man to see that, as against persons
These considerations dispose of the second, third, and fourth requests for rulings by the defendant, and also of his objections to the introduction of the evidence by the plaintiff tending to show that the shaft was not sufficiently supported and should have had an additional hanger, that a shelf underneath it would have tended to afford protection and was often placed under shafts similarly located, and that safety would have been promoted by a larger shaft. This testimony bore directly upon the question whether the defendant was justified, as a man of ordinary prudence and care, in using the shaft and pulleys as they were, and was plainly admissible upon that issue. The defendant also objected to the admission of testimony by the plaintiff tending to show that an examination of the broken ends of the shaft was made after its fall, and that there were dark streaks as though there had been a flaw or previous crack in it, and rust extending for one third to one half way through. The objection was put on the ground that it was not admissible under the declaration. But it was clearly allowable under the second count. This count was not demurred to, and though imperfectly drawn, no objection so far as the exceptions show was taken to it at the trial. Eaton v. Fitchburg Railroad, 129 Mass. 864. The defendant also further objected to testimony on the part of the plaintiff tending to show that after the accident he (the defendant) repaired the stairs where the fall of the shaft broke and damaged them, and caused some wooden sheathing to be placed just under the belt which ran across the room just below the ceiling of the fifth floor; and he objected, after the lease had
The defendant asked the court, in the fifth, sixth, and seventh requests which he presented, to rule, in substance, that if Rockwell and Churchill were in control of the stairway, or if they were not, and it had become apparent or known to them or their employees before the shaft fell that it was dangerous to pass under it or to use the stairs, and they knew of this in season to have prevented the plaintiff from passing over the stairs under the shaft, or with ordinary care on their part might have warned and prevented her from passing over the stairs, then the defendant was not liable. The court declined to rule as thus requested, and instructed the jury that no negligence of any employee of Rockwell and Churchill in omitting to give the plaintiff warning was to be imputed to her as her negligence, but the question of her due care was to be determined by her own action under the circumstances that existed, so far as these circumstances were known to her. We think that the court was right in refusing to instruct the jury as requested by the defendant. Neither Rockwell and Churchill nor any of their employees owed to the defendant the duty of warning the plaintiff against the danger.
The only question remaining is that of due care on the part of the plaintiff, which arises under the first ruling asked for by the defendant, that upon all the evidence the plaintiff was not entitled to recover. The plaintiff was a type-setter, and worked at a frame on the fourth floor, and when she had filled a galley with type, it was her duty to carry it to the fifth floor. She testified that she remembered starting to go up stairs with a galley of type to put it on the press, but remembered nothing more till she found herself in the hospital. It appeared that several of the employees of Rockwell and Churchill noticed a wobbling of the shaft shortly before it fell, and had heard a grating noise from it; and Woods, a foreman in their employ, sent a boy to the engineer to notify him that something was wrong about the shaft, and a few seconds before the shaft fell called out from the top of the stairs on the fifth floor to keep off the stairs. Several persons working near the plaintiff heard him tell the boy to go for the engineer, for the shafting was loose. It did not appear that the attention of the plaintiff was called by any one to the condition of the shaft, or that she heard any remark about it. She was attending to her work, and a want of due care cannot be imputed to her in failing to hear what wras not addressed to her. At the time of the injury she was rightfully on the stairs, and no warning was given her specially. There was no reason why she should observe the condition of the shaft and pulleys, and if there had been, it was no more strange that she, with the galley of type in her hands, on which her attention was no doubt fixed, should not have noticed the shaft and pulley, or have heard the warning of Woods, than that Woods, standing at the top of the stairs and watching the shaft, and warning people to keep
Exceptions overruled.
