Cullity v. Johnson

De Courcy, J. The plaintiff’s intestate, Thomas Cullity, was injured on October 20, 1911, while working in the retail dry goods establishment of the defendants. A dumb-waiter was used for carrying small parcels from the second floor of the building to the shipping department in the basement. It is described as a box, the bottom of which was sixteen by twelve inches. It was operated by means of a rope, which ran over a pulley in the top of the well, the rope at one end being attached to the box, and at the other end carrying a counterweight somewhat heavier than the box or “ car.” It moved in an enclosed chute or. well, which extended to the ceiling of the second floor. There was an opening in the chute about three feet above the floor of the room; and the box was open on that side, where parcels were put in. The dumbwaiter rope was in plain view; and one standing near the opening could see downward into the well a distance of ten or twelve feet. The intestate was almost eighteen years oí age. He had left [140] school when twelve years old, and was somewhat dull and slow. From September, 1910, to June, 1911, he had been at a home for consumptives. About September 8, he went to work for the defendants, and during the last week was employed on the second floor. There was no evidence as to what work he did there. The only account of the accident comes from alleged statements made by him to his father and mother. This was, in substance, that he had a parcel to put on the “car;” that it was not at the opening; that the electric signal push button did not work; that he put his head into the well, to call for the dumb-waiter (or to pull the rope), and the car, which was coming up, struck bim on the forehead and caused bim to fall backward. There was no evidence of any defect in the condition of the dumb-waiter or of the rope or pulley connected therewith. There was no hidden danger in the construction of this commonly used appliance, and the details of its operation were obvious to the casual glance. The only element of alleged danger was the speed with which the car moved, — the plaintiff’s expert testifying that in its course of twenty-six feet from the basement to the second floor it took only six and one half seconds. As to the other causes of action set forth in the thirteen counts, it is enough to say that they are without support in the evidence; and manifestly the provisions of R. L. c. 104, § 27, are not applicable. Even assuming that the defendants might owe a duty to an inexperienced employee to warn bim of this speed if he had occasion to put his hand within the well, they certainly did not owe the eighteen year-old intestate a legal duty to warn or instruct him not to put his head into the line of passage of the dumb-waiter when it was moving or might be expected to move toward him. Nor were they under any obligation to him to change the construction of this simple mechanism for carrying parcels. The record fails to disclose negligence on the part of the defendants. It is unnecessary to consider whether there was any evidence for the jury of the intestate’s due care. Ramsdell v. Jordan, 168 Mass. 505. Hydren v. Webb, 219 Mass. 542, 546, and cases cited. In accordance with the report, judgment must be entered on the verdict for the defendants. So ordered.