Marnin V. Kitson Machine Co. , 159 Mass. 156 ( 1893 )

Morton, J.

It appears that the plaintiff and a fellow servant named Butterman were told by the superintendent to take a heavy piece of machinery to the elevator, and that he (the superintendent) would follow, and help them, as soon as he got another man. The plaintiff and Butterman loaded the machinery on to a truck, of which no complaint is made, and took it to the elevator, and then, without waiting for the superintendent to arrive, put it on the elevator. It caused the elevator to drop about an inch, and McAleer, the man who had charge of the elevator, and who was oiling it, the belt being off, shouted to them to take it off; and while they were doing so the wheels of the truck struck the curbing which surrounded the elevator well, and which was level with the floor, and caused the machinery to slip and injure the plaintiff. We do not see how, on this state of facts, it can be sáid that the plaintiff’s injury was due to any negligence on the part of the defendant, or to anything except his own act and the act of Butterman, in trying, in consequence of what McAleer had said to them, to get the machinery off of the elevator after they had put it on without any direction from anybody.

There was nothing to show that the injury was due to any defect in the elevator, and the testimony that was offered was therefore rightly excluded. It may be added, also, that the plaintiff’s declaration, fairly construed, does not allege that the injury was caused by any defect in the elevator, or in the ways, works, or machinery of the defendant.

Exceptions overruled.