Melvin v. Pennsylvania Steel Co.

62 N.E. 379, 180 Mass. 196, 1902 Mass. LEXIS 1044

• Court: Massachusetts Supreme Judicial Court
• Decided: January 1, 1902
• Status: Published

Opinion

Knowlton, J.

The question in this case is whether there was evidence that the plaintiff received his injury through the negligence of the defendant or its servants.

The testimony tended to show that when the plaintiff was injured he was rightfully on the premises and was in the exercise of due care; that the defendant’s employees were working on the steel frame of the building, almost directly above him, striking with sledges and hammers; that they had cut many rivets and done a great deal of cutting; that in cutting rivets they used cold chisels similar to the one produced at the trial, holding them by means of a handle and striking them with a hammer; that the plaintiff was injured by some object falling from above and striking him on the head ; and that as he went down a cold chisel fell close by him; and that after he had been helped up a chisel on which were cut the defendant’s initials was picked up near him and handed to him by some one present. There was no evidence of any other object falling at or about that time. It did not appear that the other workmen employed in different parts of the building were using or had occasion to use cold chisels, or that any one other than the defendant’s employees was standing or working above the plaintiff in that part of the building.

On this evidence the jury were warranted in finding that the plaintiff was injured by a chisel which belonged to the defendant and fell while in use by its employees, or while under their control. The chisel produced was picked up near the place soon after the plaintiff fell, and bore marks of the defendant’s ownership. The defendant’s servants knew, or ought to have known that persons might rightfully be passing below. Apparently they could see them. The jury might have found that with proper care in adjusting the chisel to its handle and in its use, it would not fall upon a person below. Mahoney v. New York & New England Railroad, 160 Mass. 573, 579. White v. Boston Albany Railroad, 144 Mass. 404. Uggla v. West End Street Railway 160 Mass. 351. Manning v. West End Street Railway, 166 Mass 230. Graham v. Badger, 164 Mass. 42.

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 Lumber Co. 154 Mass. 407, 409. In the absence of any evidence from the defendant to explain the facts relied on, the jury might well find for the plaintiff.

Judgment on the verdict.