Elvey v. Powers

77 N.E. 1152, 191 Mass. 588, 1906 Mass. LEXIS 1330

• Court: Massachusetts Supreme Judicial Court
• Decided: May 17, 1906
• Status: Published

Opinion

Hammond, J.

The evidence tended to show that the accident was caused by the displacement of one end of one of two planks upon which the plaintiff was standing. Each plank was supported at one end by a sill three inches wide formed by a plank spiked to the side of the mill, and at the other end by the plaintiff's wagon. The planks lay on the wagon “on a perfectly flat surface,” being “ level from the building to the wagon,” and “ they did not slant or tip in any way.” They were put in place and adjusted by the plaintiff. He was an experienced teamster, and although he testified ■ that he had never before used such a contrivance in loading from a building he must be held nevertheless to have fully understood the perils incident to this method of loading and unloading a wagon. He accepted and used the planks with a full knowledge of their nature. By him they were adjusted, and he must- be held to have known that upon him rested the duty of keeping them in place. It is argued by the plaintiff that there was ice upon the sill. But, even if that was so, it does not change the responsibility of the plaintiff.

The evidence that at some time previous to the accident the planks had moved off, as also the evidence that on the day before the accident the sill was covered with dust from the meal or corn, was properly rejected within the discretion of the court.

Exceptions overruled.