Elmer v. Locke

• Decision Date: 20 October 1883
• Citation: 135 Mass. 575
• Parties: Oscar Elmer v. A. W. Locke
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 575

Oscar Elmer v. A. W. Locke

Supreme Court of Massachusetts

October 20, 1883

Franklin. Tort against the manager of the Troy and Greenfield Railroad and Hoosac Tunnel, for personal injuries received by the plaintiff, a brakeman, while in the employ of the defendant. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiff and the defendant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

J. A Aiken, for the defendant.

S. T. Field, for the plaintiff.

Devens J. Field & W. Allen JJ., absent.

OPINION

Devens, J.

There was evidence that the plaintiff was in the exercise of due care as a brakeman on the defendant's railroad; that a spur track, which had been in use for more than a year, led from the main line, and had been constructed for the purpose of approaching a stone-crusher and bringing therefrom stone, which had been broken, to ballast the tracks of the railroad; and that the falling of the trestle-work which supported a portion of this spur track, upon which the cars stood, and which was constructed for them to stand upon after they were loaded and before they were drawn away by the locomotive engine, (which fall was the cause of the injury to the plaintiff,) was occasioned by the defective construction of the trestle-work.

Apparently the train escaped from proper control by neglect of some of those who had the management of it, and who were fellow servants of the plaintiff, engaged in the common employ of conducting it. This would not be sufficient to excuse the defendant, if he was in fact responsible for the defective construction of the trestle-work. It does not exonerate him from the consequences of failure in the performance of his duty, if such failure contributed to the injury, to show that, if others for whom he is not responsible had performed their duty, the injury would not have occurred, or that it might have been avoided by care and vigilance on the part of those who were clearly the fellow servants of the plaintiff in the transaction. Cayzer v. Taylor, 10 Gray 274, 281. Eaton v. Boston & Lowell Railroad, 11 Allen 500. Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co. 97 Mass. 361, 368. Lane v. Atlantic Works, 111 Mass. 136.

The contention of the defendant is, that he is not responsible for the defective construction of this spur track, it not being shown that he failed to employ suitable persons or to provide suitable materials therefor; that if there was negligence therein, it was that of a fellow servant of the plaintiff, engaged in the same general business with him; and that he cannot recover, as it was one of the ordinary risks of the employment in which he engaged, and for which he must be deemed to have received compensation.

While it is well settled that, if a master uses reasonable care in the selection of his servants, and in supplying and keeping in repair suitable structures, and in giving proper directions and taking due precautions as to their use, he is not responsible to one servant for the negligence of another in the management and use of such structures in carrying on the master's work, it is equally clear that he is bound to use reasonable care to keep the engines with which, and the buildings, places and structures in, upon or over which, his business is carried on, in a fit and safe condition, and that he is liable to any of his servants for injuries suffered by reason of his negligence. Nor can he escape responsibility where it is his duty to supply suitable structures, instrumentalities, or appliances, by proving that he delegated to a proper agent their construction, superintendence, or repair. Holden v. Fitchburg Railroad, 129 Mass. 268.

The defendant deems that these principles apply here, and seeks to bring the case at bar within that class of cases where it has been held, in regard to temporary stagings erected for the repair or completion of buildings, that, if suitable workmen and materials are provided, the obligation of the master is discharged. But, in this class of cases, the erection of stagings is a necessary part of the work to be done, and a means for its accomplishment by those who undertake it. It may often depend upon the manner in which it is proposed to conduct the work whether such erections shall be made in one form or another. When the preparation of such appliances is not entrusted to nor assumed by the workmen the master may be guilty of negligence if defective appliances are furnished, even though the workmen themselves are employed in furnishing them. Arkerson v. Dennison, 117 Mass. 407. Where the master undertakes to perform such a duty, and his servants employed therein are negligent, he is clearly responsible. Thus, in Mulchey v. Methodist Religious Society, 125 Mass. 487, it was held that, where the defendant undertook to erect and remove a staging to be used...