Allen v. G.w. & F. Smith Iron Co.

• Decision Date: 01 March 1894
• Citation: 36 N.E. 581,160 Mass. 557
• Parties: ALLEN v. G.W. & F. SMITH IRON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 557

36 N.E. 581

ALLEN v. G.W. & F. SMITH IRON CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1894

COUNSEL

Edward Avery and Albert E. Avery, for plaintiff.

Robert F. Herrick and Guy Cunningham, for defendant.

OPINION

HOLMES, J.

This is an action under the employer's liability act, St.1887, c. 270, for the death of the plaintiff's intestate. He was killed by the fall of a semicircular iron door, which formed half the bottom of a cylindrical furnace, and which he was helping to raise and shut. A wooden lever, by which a fellow workman was helping to raise the door on its hinges, broke, the door swung down, and struck an iron lever held by the deceased, and drove it into his abdomen. The question is whether the case should have been taken from the jury. The plaintiff says that there was a case for them on the ground that the defendant failed to furnish a proper lever. We are of opinion that the defendant was entitled to a verdict. In in the first place, there is no evidence that the stick was defective, except that it broke, and none that it appeared to be defective or could have been discovered to be so. It had been in use for a long time, but was not specially worn at the point of strain. It would not have been permissible for the jury to find that the stick ought to have been known to be defective because of its age alone. In the next place, the whole matter was in the hands of the deceased. He was the person in immediate charge of the furnace. If a new stick was needed, it was his business to know it. The primary duty rested on him, not on any superior officer. Again, if a new stick had been needed, it could have been obtained of the carpenter by the deceased at any time. The defendant kept a stock of lumber of the proper size on hand, and the deceased only had to ask for what he wanted. If such a stick can be said to be part of the works or machinery, the defendant's duty to the deceased did not require it to see that he called for a proper one. It was enough that it had proper ones within convenient reach. Carroll v. Telegraph Co., (Mass.) 35 N.E. 456.

Exceptions sustained.