Heuser v. Tileston & Hollingsworth Co.

Massachusetts Supreme Judicial Court

Heuser v. Tileston & Hollingsworth Co.

119 N.E. 683, 230 Mass. 299, 1918 Mass. LEXIS 913

CourtMassachusetts Supreme Judicial Court

DecidedMay 24, 1918

StatusPublished

Cited by5 cases

This text of 119 N.E. 683 (Heuser v. Tileston & Hollingsworth Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heuser v. Tileston & Hollingsworth Co., 119 N.E. 683, 230 Mass. 299, 1918 Mass. LEXIS 913 (Mass. 1918).

Pincite

Opinion

Crosby, J.

The plaintiff was injured by a chisel which fell striking him on his head. The undisputed facts show that the plaintiff was an employee of the Jarvis Engineering Company which was engaged in wrecking some upright boilers at the defendant’s mill by tearing out the brick work around them, while at the same time the defendant’s employees were removing the tubes and taking down the boilers; the tubes were disconnected from the boilers by cutting them with steel chisels, and the men doing this work entered the boilers by openings in the tops which were reached by a ladder. The boilers were about thirty feet in height and about thirty inches apart. At the time of the accident some of the defendant’s workmen were inside one of the boilers cutting the tubes, and the plaintiff was removing the brick wall near the ground beneath where the defendant’s employees were at work. There was evidence that á plank was laid across the tops of two of the boilers and that in cutting the tubes there was more or less vibration; that about the time of the accident one O’Riordan, an employee of the defendant, went up the ladder carrying two chisels which had been sharpened. A witness called by the plaintiff testified that he had seen tools on the plank; that just before the accident he heard the ring of a chisel and saw the plaintiff fall although he did not see anything strike him; “that he had seen the chisel before at the top of the boiler, and when he saw it, it was halfways on the plank and halfways on the boiler, — that is, one part of the chisel lapped over from the edge of the boiler to the plank right at the drum-head.” A chisel was found near where the plaintiff was struck and there was evidence that similar chisels were being used by the defendant’s employees at that time. It appeared that while chisels also were used by the [302]*302employees of the Jarvis Engineering Company in removing the brick wall, none were in use on the day of the accident or the day before, and that the plank fell at the same time as the chisel which struck the plaintiff. The testimony tended to show that he was rightfully at work on the premises and was in the exercise of due care; and that during the time in question the defendant’s employees were the only workmen using chisels. Upon this evidence, it could have been found that the chisel which struck the plaintiff was either dropped by O’Riordan as he was carrying it up the ladder, or that it had been left upon the plank by an employee of the defendant, and that the plank and chisel were caused to fall by the vibration due to cutting the tubes; and although no one saw the chisel fall, it would seem that these are the only reasonable explanations of the accident.

If it happened in either way, it could have been found to be due to the negligence of the defendant’s employees who were not fellow servants of the plaintiff. Under such circumstances the defendant owed to the plaintiff the same duty not carelessly to injure him that it owed to its own employees. Pettingill v. William Porter & Son, Inc. 219 Mass. 347, and cases cited. The finding of the jury cannot be said to have been based upon conjecture. Reasonable inferences could have been drawn from facts found to exist which would support the verdict. As was said in Melvin v. Pennsylvania Steel Co. 180 Mass. 196 at page 202, “The plaintiff was not bound to show the particulars of the defendant’s negligence. It was enough if he showed facts from which negligence properly might be inferred. Mooney v. Connecticut River Lamber Co. 154 Mass. 407, 409. In the absence of. any evidence from the defendant to explain the facts relied on, the jury well might find for the plaintiff.” The facts there are similar in many respects to those in the case at bar, and that case is decisive. Lowner v. New York, New Haven, & Hartford Railroad, 175 Mass. 166. Woodall v. Boston Elevated Railway, 192 Mass. 308. Davis v. Boston Elevated Railway, 222 Mass. 475.

The exceptions to the testimony of the witness Packard, that within a day or two before the accident he had seen O’Riordan come up half way through the manhole and pick up something and go back again, cannot be sustained. This testimony had some tendency to show that something was on the plank, and in con[303]*303nection with, the testimony of the same witness that he had seen tools on it, it could have been inferred that the plank was used for that purpose.

The exception of the defendant to the refusal of the presiding judge to give its first and second requests for instructions in the exact language presented, must be overruled. The instructions given were substantially as requested, and were accurate.

Exceptions overruled.

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Crosby, J.

The plaintiff was injured by a chisel which fell striking him on his head. The undisputed facts show that the plaintiff was an employee of the Jarvis Engineering Company which was engaged in wrecking some upright boilers at the defendant’s mill by tearing out the brick work around them, while at the same time the defendant’s employees were removing the tubes and taking down the boilers; the tubes were disconnected from the boilers by cutting them with steel chisels, and the men doing this work entered the boilers by openings in the tops which were reached by a ladder. The boilers were about thirty feet in height and about thirty inches apart. At the time of the accident some of the defendant’s workmen were inside one of the boilers cutting the tubes, and the plaintiff was removing the brick wall near the ground beneath where the defendant’s employees were at work. There was evidence that á plank was laid across the tops of two of the boilers and that in cutting the tubes there was more or less vibration; that about the time of the accident one O’Riordan, an employee of the defendant, went up the ladder carrying two chisels which had been sharpened. A witness called by the plaintiff testified that he had seen tools on the plank; that just before the accident he heard the ring of a chisel and saw the plaintiff fall although he did not see anything strike him; “that he had seen the chisel before at the top of the boiler, and when he saw it, it was halfways on the plank and halfways on the boiler, — that is, one part of the chisel lapped over from the edge of the boiler to the plank right at the drum-head.” A chisel was found near where the plaintiff was struck and there was evidence that similar chisels were being used by the defendant’s employees at that time. It appeared that while chisels also were used by the [302]*302employees of the Jarvis Engineering Company in removing the brick wall, none were in use on the day of the accident or the day before, and that the plank fell at the same time as the chisel which struck the plaintiff. The testimony tended to show that he was rightfully at work on the premises and was in the exercise of due care; and that during the time in question the defendant’s employees were the only workmen using chisels. Upon this evidence, it could have been found that the chisel which struck the plaintiff was either dropped by O’Riordan as he was carrying it up the ladder, or that it had been left upon the plank by an employee of the defendant, and that the plank and chisel were caused to fall by the vibration due to cutting the tubes; and although no one saw the chisel fall, it would seem that these are the only reasonable explanations of the accident.

If it happened in either way, it could have been found to be due to the negligence of the defendant’s employees who were not fellow servants of the plaintiff. Under such circumstances the defendant owed to the plaintiff the same duty not carelessly to injure him that it owed to its own employees. Pettingill v. William Porter & Son, Inc. 219 Mass. 347, and cases cited. The finding of the jury cannot be said to have been based upon conjecture. Reasonable inferences could have been drawn from facts found to exist which would support the verdict. As was said in Melvin v. Pennsylvania Steel Co. 180 Mass. 196 at page 202, “The plaintiff was not bound to show the particulars of the defendant’s negligence. It was enough if he showed facts from which negligence properly might be inferred. Mooney v. Connecticut River Lamber Co. 154 Mass. 407, 409. In the absence of. any evidence from the defendant to explain the facts relied on, the jury well might find for the plaintiff.” The facts there are similar in many respects to those in the case at bar, and that case is decisive. Lowner v. New York, New Haven, & Hartford Railroad, 175 Mass. 166. Woodall v. Boston Elevated Railway, 192 Mass. 308. Davis v. Boston Elevated Railway, 222 Mass. 475.

The exceptions to the testimony of the witness Packard, that within a day or two before the accident he had seen O’Riordan come up half way through the manhole and pick up something and go back again, cannot be sustained. This testimony had some tendency to show that something was on the plank, and in con[303]*303nection with, the testimony of the same witness that he had seen tools on it, it could have been inferred that the plank was used for that purpose.

The exception of the defendant to the refusal of the presiding judge to give its first and second requests for instructions in the exact language presented, must be overruled. The instructions given were substantially as requested, and were accurate.

Exceptions overruled.

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Bluebook (online)

119 N.E. 683, 230 Mass. 299, 1918 Mass. LEXIS 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heuser-v-tileston-hollingsworth-co-mass-1918.

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