Towne v. Waltham Watch Co.

Carroll, J. The plaintiff, an employee of the defendant, was injured in the course of his employment by stepping on a loose stone “ about as large as two hen’s eggs,” upon one of the steps leading down from a concrete platform to the boiler house court on the defendant’s premises. The defendant was not a subscriber under the workmen’s compensation act. There was evidence that the plaintiff had been a watchman for the defendant; that in 1919, he ceased to labor at this particular work and was placed in other employment, part of which consisted in removing cans of benzine from the concrete platform to the room where the benzine was distilled; that the platform was used for loading and unloading merchandise, and as a means for entrance and exit from the plant by its employees, and for other purposes; that two or three weeks before the date of the injury the defendant began excavating under one of its buildings; that the dirt and stones removed were taken to the platform and from there placed on a truck backed against it or, if the truck was not there at the time, the dirt was thrown from the side of the platform, opposite the steps; that when the earth was placed in the truck it was near the steps of the platform; that planks were laid and earth wheeled in barrows over these planks to the truck. The plaintiff testified that at times the dirt and stones thrown into the court were higher than the platform, “ sometimes it would be from up on the platform; ” that about a week before he was injured he spoke to one Williams, in charge of the excavating work, and called his attention [393] to the condition of the platform, that the earth “ was strewed around on the platform so that it was most impossible to walk over it; ” that Williams replied, “ I will see to that,” and the condition of the platform after that time was better. The plaintiff was injured about five o’clock on the night of September 23, 1919. Just before the accident a truck was backed up to the platform near the step, and “ they were wheeling into it.” After the truck departed he went upon the platform, and while carrying a can of benzine he stepped on a stone and fell. In answer to a written interrogatory of the plaintiff, the defendant’s president stated: “ General order to all workmen to keep steps and platform clean.” The duty of the defendant was to furnish the plaintiff with a reasonably safe place in which to do his work. The defendant was not negligent merely because a stone of the size described by the plaintiff was upon the step, without some evidence indicating how long it had been there, or that the defendant knew or might have known by the exercise of reasonable care of its presence. Zugbie v. J. R. Whipple Co. 230 Mass. 19. Downing v. Jordan Marsh Co. 234 Mass. 159. See Lumbert v. Gurney, 222 Mass. 235. Connolly v. Felter, 238 Mass. 305. There was no direct evidence showing where the stone came from or what caused it to be on the steps. Even if it could be found that it fell from the truck, from one of the wheelbarrows, or from the platform, it does not appear when this happened, or that the stone had been on the steps such a length of time that the defendant was guilty of negligence in failing to discover or remove it. The workmen's compensation act does not enlarge the employer’s duty. As was said in Walsh v. Turner Centre Dairying Association, 223 Mass. 386, “ It does not transform conduct theretofore lawful on the part of the employer into negligence.” The fact that the defendant knew the conditions under which the work was being carried on and had notice on one occasion from the plaintiff that stones and earth were upon the platform, did not make the defendant negligent, upon all the evidence disclosed, in failing to remove the stone, and in our opinion the evidence does not show that its presence could [394] have been reasonably anticipated. Anjou v. Boston Elevated Railway, 208 Mass. 273, was an action by a passenger against a carrier. In that case there was evidence that the defect complained of had existed for some time in such á way that the defendant could have seen it, and in the performance of its duty, should have removed it. The statement of Williams to the plaintiff in reference to the condition of the platform, that there would “ always be a chance there to get the cans; that it would be all clear on that side, next to the court where you go down on to the driveway next to the steps,” did not amount to an assurance that no stone would be found on the platform; the statement imposed no greater obligation on the defendant than the duty required by law. The remark of Williams, when the plaintiff informed him a few weeks before the accident that the platform was not clean, that he would see to it, did not make it the duty of the defendant to do more than keep the place reasonably safe. From the fact that a general order was given to all workmen to keep the steps and platform clean, it could not be contended under all the circumstances shown in this case that an absolute duty rested upon the defendant of keeping the place free from such stone as caused the plaintiff’s fall. The principle established in Stevens v. Boston Elevated Railway, 184 Mass. 476, that a violation of a rule adopted by the defendant for the safety of others may be evidence tending to show negligence, has no application to the case at bar. There was no evidence of the defendant’s negligence in violating its duty to keep the steps and platform reasonably safe, and the plaintiff cannot recover. Exceptions overruled.