200 Mass. 263 | Mass. | 1908
So far as material to the question of the due care of the deceased, the case stated by the counsel for the plaintiff in his opening was substantially as follows:
The deceased was a boy fourteen years and eleven months old at the time of the accident. He had been at work upon the premises a week, for one Demaris, who was working by the job at re-lasting shoes for the defendants, who owned and controlled the factory. He had worked previously for some weeks in another factory of the defendants. His duty was to carry racks of shoes to and from Demaris, who worked on the third floor, and for this purpose he used the elevator. About five o’clock in the. afternoon of the day of the accident he went upstairs upon the elevator, as he had done many times during the week, in the performance of his duty. Upon arriving at the desired floor, he got out of the elevator on the floor, and spoke a word or two with one La Chappelle, who was working on that floor twelve or fifteen feet from the elevator well. The last that La Chappelle saw of the boy he (the boy) had hold of a rack of shoes and was walking backward toward the well, drawing the rack after him. He had got within two feet of the well when La Chappelle turned back to his work, but immediately heard a loud noise and a cry. The boy had fallen into the well, and was fatally injured.
So far as material the elevator and gate were described as follows: “The gate ... as originally installed was a balance gate. That is, it was a gate which when thrown up it ran in a groove.” It consisted of two bars with cross pieces. As originally constructed the gate, when thrown up, would be held up by a weight connected with it as a balance, like a window weight, but some time before the accident the top bar had been broken and an extra piece had been nailed on, making the gate heavier, so that when thrown up it sometimes stayed up and sometimes fell down of its own weight. The elevator and gate had been in this condition for several months. The plaintiff’s evidence did not show whether immediately after the accident the gate was up or down. Except as above stated, “ There was nothing on the elevator to tell when it was taken away from that floor, there was no method of locking the elevator at that floor, no bell or anything which would warn one who might expect it to be there that it had gone.” Shortly after the boy fell the platform of the
The evidence would seem to show that the boy who had brought the elevator to the floor stepped out for a few seconds, and then, on his return with the rack of shoes, backed into the well without looking to see whether the elevator was still there, or else he turned around, raised the gate, and then stepped into the well.
It is to be noticed that the gate was not connected automatically with the elevator. The position of the gate did not indicate where the elevator should be and the boy knew it. The case therefore is clearly distinguishable from cases like Wright v. Perry, 188 Mass. 268, and Hamilton v. Taylor, 195 Mass. 68, upon which the plaintiff relies. In each of those cases the gate was automatically connected with the elevator and at the time of the accident it indicated by its position that the platform of the elevator was there.
In the case before us there was no such misleading signal. Upon the opening statement it must be held that the deceased was not in the exercise of due care; and hence a verdict for the defendants was rightly ordered.
Exceptions overruled.
