Childs v. American Express Co.

84 N.E. 128, 197 Mass. 337, 1908 Mass. LEXIS 720

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1908
• Status: Published

Opinion

Rugg, J.

The accident, for which this action is brought, occurred in a basement shipping room, where the plaintiff was employed by one Rogers. From this room a staircase six feet wide of twenty-two stairs, the tread of each stair being eighteen inches in width, leads up to a driveway. A tackle and fall were kept on the premises for use in raising articles from the basement by way of the stairs. The day before the accident a large, heavily filled drummer’s trunk was-brought to the shipping room, and remained there until the next day, when one Melzard, an employee of the defendant, came for it. The plaintiff, at Melzard’s request, assisted in moving the trunk to the foot of the stairs. Melzard hooked one part of the tackle in á ring on a post upstairs, fastened one end of the rope on some part of his team, which stood at the head of the stairs, and gave the other end of the rope to the plaintiff, who at Melzard’s request fastened it into the handle of the trunk. The plaintiff then returned to work, and shortly afterward heard a noise upstairs, whereupon, without any request and of his own accord he ran to the- foot of the stairs, where he saw the trunk apparently caught, and he called to Melzard to stop, and then, as he was turning to go to his work again, the trunk came down, struck him and caused the injury complained of. The handle of the trunk at this time had been torn off.

This evidence fails to disclose any negligence on the part of the defendant. The cause of the accident is left wholly to conjecture. While it is not necessary for the plaintiff to exclude every possibility that the accident may have happened through some cause other than the negligence of the defendant, he is bound to introduce evidence enough to remove the cause from the realm of speculation, and give it a solid foundation upon facts, for the harmful effect of which the defendant, is responsible. Woodall v. Boston Elevated Railway, 192 Mass. 308. There is no description of the handle of the trunk, and it does not appear whether it was defective or worn, or whether any reason why it could not be safely used in connection with the tackle could have been discovered upon inspection. The plaintiff himself had quite as good opportunity to observe it as the servant of the defendant, and he proffers no explanation to show that it was not sufficiently strong, or that its weakness could have been observed. It may have been that the highest degree of diligence on the part of the defendant could not have found any ground for apprehension that the handle might not be used in any reasonable way for moving the trunk. It is manifest that other causes than the neglect of the defendant might have caused the trunk to fall. Under these circumstances the plaintiff must bar out by the greater weight of credible evidence the causal' connection with his injury of all facts other than the defendant’s negligence. The plaintiff failed to produce sufficient evidence to warrant a finding to this effect; hence a verdict against him was ordered rightly. Harnois v. Cutting, 174 Mass. 398. McGee v. Boston Elevated Railway, 187 Mass. 569. Wadsworth v. Boston Elevated Railway, 182 Mass. 572. Faulkner v. Boston & Maine Railroad, 187 Mass. 254. Saxe v. Walworth Manuf. Co. 191 Mass. 338.

Exceptions overruled.