Lynch v. C. J. Larivee Lumber Co.

Pierce, J. The plaintiff was an employee of the defendant, and at the time of his injury was engaged with some fellow employees in taking planks from a pile in the defendant’s lumber yard. The pile was four or five feet high and five tiers wide. It was made up of 2X8 and 4X6 timbers, twenty-eight or thirty feet long, not tied. It was thrown by the side of the roadway temporarily, waiting for orders, “certain lengths to be picked out of it, . . . piled up for a matter of two or three days,” and “not put there for a permanent pile at all.” The plaintiff testified: “The custom of piling piles in the driveway ‘on orders’ has existed on the wharf of this company from the time I went to work there down to the present time,” sixteen years; that he was a teamster and not a piler; that he had taken lumber off of the piles and also, while testifying as to the propriety and safety of putting timber up, that “The higher up they are the more care should be observed in the putting in of the sticks, and if I had a pile of planks 2X8 lying on the ground up 16 planks thick, that would be safe enough.” There is no better way of finding out whether a pile is secure or not than to go right up and take hold of it. “There is a sort of feeling when you take hold and shake the pile that shows when it is secure.” As to the circumstances attending his injury he testified: “I had my team loaded in what they call No. 3 driveway and tried to get out, but there was one of the other teams blocking the driveway so I couldn’t get out, and when I see I couldn’t get out, why, I got off the wagon and, as it is always customary to do, started to help the teamster. As I stopped my team and got off and went up to the pile the man in charge of the job, Mr. Hanify — they were just ready to raise a stick at the time — he said ‘ Come on, Lynch,’ ‘break it,’ so I stepped in to break it. I got down off the team and walked toward the pile, just walking about thirty feet, you might as well say, got off my team and walked up for to help to load the wagon, and when Hanify told me to break it I stepped [338] in for to break it and it came over on me. The breaker is what we call the pivot. There are either a man or two men on each end of the stick, and when they raise the stick the man that is called the pivot or breaker generally steps in and they place it on his shoulder, and he swings it around, the man on front end lets go and the men on the back end bears down, and you swing around, and place the forward end on the wagon. The breaker stands, I should judge about the middle of the pile and when Hanify told me to break it down, I walked in alongside of the pile for to get it on my shoulder and the pile came over on to me. It hit me in the ankle and knocked me down and broke my anide. The stick had not left the hands of the men who were to place it on my shoulder and I had done nothing after leaving my team and walking toward the pile except when receiving that direction stood about opposite the centre of the pile. Hanify is the man in charge of the job, in charge of loading the wagon. He was tallying and directing the men what sticks to put on the wagon. He always held the same position and he always did the same work. I stood right up close to the pile. I had not noticed what kind of a pile or how it was piled. I did not know that when they lifted this stick the pile was likely to fall over on me, if I did I would not be there.” The plaintiff’s declaration is in three counts, two under the employers’ liability act, R. L. c. 106, § 71, cl. 1, 2, and one at common law. Count 1 alleges as the cause of the plaintiff’s injury “the negligence of the defendant or of a person in the employ of the defendant exercising superintendence and whose sole or principal duty was superintendence in failing to warn the plaintiff of the dangerous condition of a certain pile of lumber to which the plaintiff had been sent to work.” Count 2 alleges that the plaintiff “was injured owing to a defect in the ways works and machinery used in the business of the defendant which arose from the negligence of a person in the employ of the defendant exercising superintendence whose sole or principal duty was that of superintendence to wit, the careless piling of a pile of lumber.” Count 3 that the plaintiff “was injured owing to the negligence of the defendant in permitting said pile to be in a dangerous and unsafe condition which condition was unknown to the plaintiff but should have been known to the defendant.” Each count alleges the due care of the plaintiff and, by amendment allowed by [339] consent, that “due notice of the time, place and cause of said injury was given the defendant.” One Brown testified: “I was foreman, yard foreman. ... I took my orders from Parsons, the superintendent. These tallymen while they were working down in the yard would come to me for help to load their team. ... A tallyman was necessarily a man who wrote a good hand and was fit for clerical work: I can’t say how frequently they would help load teams, but when necessity demanded it. When we were unloading vessels it was necessary for them to take out lumber off the edge of the wharf as fast as it was demanded and pile it up. At that time we had a large number of men, from twenty to thirty; at other times about four or five steady men, when we were not unloading vessels, and teamsters besides, about half a dozen. Besides the yard men whatever teamsters there were under my charge when they were in the yard loading the wagons. Not only them but also when they were loading the wagons the tallymen were under my charge; and the tallymen were obliged to come to me for help when they needed help to load a wagon. The tallymen did various other things, worked in the dry house, sometimes cleaning up the shed, swept up the shed, something like that to keep busy under my orders and those of Mr. Parsons.” The jury would be warranted upon this testimony in finding Brown was a superintendent within the meaning of the act; Brown, who was not present at the time of the accident, had ordered the pile of timber from which the planks fell to be placed by the side of the roadway a few days before the day of the plaintiff’s injury, but there is no evidence that he was present at the piling, that he directed the manner of piling, that he selected for the work other than experienced and competent men, that he knew that the pile as set up was in fact unsafe or knew or should have known that it probably would become unstable and dangerous from any cause other than interference with the support one plank afforded to the others. Nor is there any evidence that he directed the removal of the planks or that it was his duty as yard foreman to superintend the tallymen in the performance of such work. Outside of the fact that a part of the pile fell at the moment of the removal of a single plank there is no evidence of the instability of the pile or that any unusual and hidden danger lurked in it. [340] What relation of support, if any, the plank last removed sustained to others, is pure conjecture as is the question whether its removal was not a negligent act of fellow servants. The evidence does not warrant a finding of fact that the pile was unsafe by reason of any act or default of the superintendent, Brown, that he knew or should have known that it was unsafe for the plaintiff to work upon or about it. It follows that there was no duty of the superintendent that required him to warn the plaintiff of the danger attendant upon his work. The tallyman, Hanify, who set the plaintiff at work, is not shown to have had knowledge of the maimer of the original piling or of the condition of the pile as to safety beyond what was apparent to the observation of the plaintiff and to that of his experienced co-workers. Upon receiving orders on slips from the office it was the tallyman’s duty to procure of the superintendent, Brown, men to assist in loading on teams the lumber that was called for on his order as he should find it. In doing this work the men were supposed to obey him and he had charge of the loading of the teams. There is no evidence that the accident was attributable to any act or default of Hanify in connection with any matter over which he had or had assumed- to have power of superintendence. That there can be no recovery upon the common law count is settled by Regan v. Lombard, 181 Mass. 329. We do not find it necessary to determine whether the plaintiff was in the exercise of due care. See Baldwin v. St. Louis, Keokuk & Northern Railway, 68 Iowa, 37. The presiding judge was clearly right in the exclusion of the proffered expert testimony upon the question of the proper piling of the pile, as the subject required no peculiar learning or experience and was one upon which the jury could have no difficulty in forming an opinion for themselves as to the liability of the pile to fall and injure a person who should be near it. New England Glass Co. v. Lovell, 7 Cush. 319. Baldwin v. St. Louis, Keokuk & Northern Railway, supra. Whalen v. Rosnosky, 195 Mass. 545. The photographs were improperly admitted in evidence. They were not verified, they were not received as chalks, and there was no pretence that they represented actual conditions as they existed [341] at the time of the accident. Blair v. Pelham, 118 Mass. 240. Everson v. Casualty Co. of America, 208 Mass. 214. The deposition was properly excluded in the discretion of the court; it had never been filed under Rule 36 of the Superior Court, and when it was offered both parties had rested. Carriere v. Merrick Lumber Co. 203 Mass. 322, 327. It follows that evidence could not properly have been submitted to the jury, that the direction of a verdict for the defendant was rightly ordered and that now in accordance with the terms of the report judgment for the defendant should be entered. And it is So ordered.