Myers v. Hudson Iron Co.

• Decision Date: 26 November 1889
• Citation: 22 N.E. 631,150 Mass. 125
• Parties: MYERS FLYNN KANE FALLOW v. HUDSON IRON CO. FLYNN KANE FALLOW v. SAME. FLYNN KANE FALLOW v. SAME. FLYNN KANE FALLOW v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 125

22 N.E. 631

MYERS FLYNN KANE FALLOW v. HUDSON IRON CO. FLYNN KANE FALLOW v. SAME. FLYNN KANE FALLOW v. SAME. FLYNN KANE FALLOW v. SAME.

Supreme Judicial Court of Massachusetts, Berkshire.

November 26, 1889

COUNSEL

J.F. Noxon and Wm. Turtle, for plaintiffs.

H.L Dawes, M. Wilcox, and T.P. Pingree, for defendant.

OPINION

C ALLEN, J.

The several plaintiffs, who were under-ground laborers in the defendant's mine, were undertaking to descend into the mine through a perpendicular shaft by means of a bucket, as they had been in the habit of doing. The bucket was supported by a wire rope or cable, which wound around a drum, and it was usually controlled in its descent by means of a shoe-brake which pressed upon the drum-head. This shoe-brake was operated by the defendant's assistant engineer, by means of a lever. On the occasion of the accident, the plaintiffs had all entered the bucket, and, upon word being given, the assistant engineer started to let the bucket descend, and after it had descended a few feet he found the brake was not holding, and the bucket fell rapidly for about 125 feet, when it was suddenly stopped by landing planks across the shaft, and the plaintiffs were hurt. At the trial much evidence was introduced by the plaintiffs and by the defendant, at the conclusion of all of which the defendant requested the court to instruct the jury to return verdicts for the defendant; but the court declined to do so, and submitted the cases to the jury, who returned verdicts for the several plaintiffs. There was no request for any special instruction as to the rules of law applicable to the cases, and no exception was taken to the instructions which were actually given to the jury; but the defendant's complaint is that the whole evidence was insufficient to warrant the verdicts for the plaintiffs.

One ground upon which the defendant has relied in the argument before us has been that upon the facts disclosed the plaintiffs must be held to have assumed the risk of the safety of the machinery. There are many cases in which plaintiffs have for this reason been held to be debarred from recovering damages for injuries; but in the present case we do not find undisputed facts sufficient to make such a course proper. The risk of the safety of machinery is not assumed by an employe, unless he knows the danger, or unless it is so obvious that he will be presumed to know it. He takes the risk of known or obvious dangers, and not of others. Scanlon v. Railroad Co., 147 Mass. 484, 487, 18 N.E. 209; Ferren v. Railroad Co., 143 Mass. 197, 9 N.E. 608; Linch v. Manufacturing Co., 143 Mass. 206, 9 N.E. 728; Ford v. Railroad Co., 110 Mass. 240, 259. It was no part of the plaintiffs' duty to operate the machinery for lowering the bucket. Their work was under ground. We cannot say that the risk was so obvious that they must be held to have assumed it. The defendant even now strongly resists the inference that the machinery was in fact dangerous or unsuitable for use, and argues that the evidence conclusively shows the contrary. The plaintiffs might well rely somewhat upon the expectation that the defendant would provide proper machinery for lowering them to their work, and they were not called upon to be overstrict in an examination into its safety. We cannot say that as matter of law the plaintiffs must be held to have taken the risk, and that for this reason they are debarred from a recovery.

We have next to consider whether there was sufficient evidence to warrant a finding by the jury that the defendant did not exercise reasonable care in providing a safe machine. The court instructed the jury, in terms to which no exception was taken, that the defendant was not bound to procure and maintain machinery which should be absolutely safe, or to furnish the best appliances which were known or conceivable that the question for the jury was not whether the defendant omitted something which it could have done, or could have supplied, to make its structures or machinery more safe, but whether, in selecting and maintaining the same for use, it was reasonably prudent and careful; and that the fact that there were other kinds of machinery and apparatus might be taken into account in determining whether the defendant exercised due and sufficient care. The only question upon this part of the case, therefore, is whether the plaintiffs were entitled to go to the jury upon the charge of a want of due care on the part of the defendant. The defects relied upon were a want of sufficient holding power in the brake, and the absence of any contrivance sufficient to stop the bucket in case the brake should fail. In reference to the brake, the plaintiffs introduced evidence tending to show that in its design and original construction a shoe-brake of the dimensions used in this instance was insufficient; that the defendant itself had in use elsewhere two other contrivances, namely, a strap-brake, which would come in contact with more of the surface of the drum-head, and a friction V, so-called, either of which would hold better than the shoe-brake; also, that a clutch-machine, which could be operated by a reversible engine both ways, in descending as well as in ascending, would be safer. The plaintiffs also introduced evidence tending to show that in various ways the original efficiency of the shoe-brake had become impaired, namely, that the brake-band had been worn from a smooth surface into ridges by nails used in fastening the leathers to the wooden part of the brake; that the shoe-brake did not cover the whole width of the brake-band, but was allowed to extend over the front edge; that the shaft on which the drum revolved, and the boxes of the drum, had become so worn that there was about a quarter of an inch space between the shaft and the box of the drum; that by reason thereof a larger quantity of oil ran out upon the head and band of the drum than would otherwise have done; that the holding qualities of the leather on the brake had been impaired from the effect of steam; and that in all these various ways the brake had become less efficient than it had been at the outset. The plaintiffs also introduced evidence tending to show that the clutch-gear which was used in hoisting ore from the mine, but which was disengaged when the bucket was to be lowered, might by possibility be used to stop the descent of the bucket in case of the shoe-brake's failing to hold; and that this, by reason of wear and of a change which had at one time been made by beveling the faces of the horns of the clutches, had become less useful as a possible means of arresting the descent of the bucket, and that, in fact, it had proved ineffectual to stop such descent at the time of the accident. The defendant in reply introduced much evidence, which certainly was sufficient...