Ciriack v. Merchants' Woolen Co.
| Decision Date | 29 February 1888 |
| Parties | CIRIACK v. MERCHANTS' WOOLEN CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse, H.G. Nichols, and C.K. Cobb, for defendant.
The burden is upon the plaintiff to show (a) negligence on the part of the defendant; (b) due care on his own part. Blanchette v. Manufacturing Co., 143 Mass. 21, 8 N.E. 430, (1886.) It is submitted that, in this case, the evidence shows neither, and that there was no evidence to go to the jury. It is submitted that, under the circumstances there was no necessity for cautioning the plaintiff. If cautioning was necessary, failure to give it was negligence of the foreman, a fellow-servant of the plaintiff, not that of the defendant. Sullivan v. Manufacturing Co., 113 Mass. 396; Ford v. Railroad Co., 110 Mass. 261; Huddleston v. Machine-Shop, 106 Mass. 282, 285. This case comes within the line of cases which hold that where the master has furnished appliance, and the injury happens by reason of a foreman or superintendent misusing those appliances, in a manner which, with reasonable care, the master could not anticipate, he cannot be held responsible. It is not sought by the defendant, to vary the well-settled rule in this commonwealth that, where it is the duty of a corporation to give instruction to its employes, it cannot relieve itself of its responsibility by delegating the duty of giving such instructions to a foreman or other workman, as was held in Coombs v. Cordage Co., 102 Mass. 572. But there is a distinction, as well settled as the rule stated above, between failing to give instructions which a foreman is required to give, as or instead of the master, and those which, if necessary at all for the plaintiff's safety, are a part of a personal discretionary act of the foreman. See Duffy v. Upton, 113 Mass. 544. It is difficult to distinguish this last-cited case from the case at bar. In both cases it was the unanticipated act of a fellow-servant, against which the defendant could not be expected to guard. See, also, O'Connor v Roberts, 120 Mass. 227. For cases of facts very similar to the above, see Zeigler v. Day, 123 Mass. 152; Felch v. Allen, 98 Mass. 572; Flynn v Salem, 134 Mass. 351; Johnson v. Boston, 118 Mass. 114. For cases to the effect that, the master having furnished proper materials and appliances for the work, the use and application of them, according to the ex-agencies of the work, is the duty of the servant, and that an injury received by a workman, in consequence of instructions of the superintendent or foreman of the work, gives no ground of action against the master. See cases cited supra; also Floyd v. Sugden, 134 Mass. 563; Johnson v. Tow-Boat Co., 135 Mass. 209; Robinson v. Manufacturing Co., 143 Mass. 534, 10 N.E. 314; Kenney v. Shaw, 133 Mass. 501; Curran v. Manufacturing Co., 130 Mass. 374; Wilson v. Merry, L.R. 1 H.L. 326.
It cannot be material whether the defendant's servant brings the appliances, which he misuses, into contact with the plaintiff, or brings the plaintiff into contact with the appliance, as was done in the case at bar. The question in all the cases is, was the act one which, in the exercise of reasonable care, the defendant could have anticipated? That the foreman or overseer of a room in a mill is a fellow-servant with hands employed under him, and that for injury happening in consequence of the negligence of such foreman, the master is not liable, are well-settled points in this commonwealth and elsewhere. Albro v. Canal Co., 6 Cush. 75; Zeigler v. Day, 123 Mass. 152; Felch v. Allen, 98 Mass. 572; Duffy v. Upton, 113 Mass. 544; O'Connor v. Roberts, 120 Mass. 227; Flynn v. Salem, 134 Mass. 351. And the fact that the servant injured is a minor does not vary the rule. King v. Railroad Co., 9 Cush. 112; Curran v. Manufacturing Co., 130 Mass. 374. And whether the employe, through whose negligence the accident occurred, acted as a fellow-servant, or as the representative of the master, is a question of law and not of fact. Johnson v. Tow-Boat Co., 135 Mass. 209. When a plaintiff offers no evidence that he was in the exercise of care, but on the contrary the whole evidence on which his case rests shows that he was careless, action cannot be maintained. Gahagan v. Railroad Co., 1 Allen, 187, 190; Todd v. Railroad Co., 3 Allen, 18. The burden is always upon the plaintiff to establish either that he himself was in the exercise of due care, or that the injury is in no degree attributable to any want of proper care on his part. Murphy v. Deane, 101 Mass. 455, 466; Witherley v. Canal Co., 12 C.B.(N.S.) 2. The plaintiff's evidence shows that he did not use due care, and that the accident was the result of his own carelessness. That the burden is on the plaintiff to show that he was himself using due care, see Blanchette v. Manufacturing Co., 143 Mass. 21, 8 N.E. 430; Leary v. Railroad Co., 139 Mass. 580, 2 N.E. 115; Lovejoy v. Railroad Co., 125 Mass. 79; Williams v. Churchill, 137 Mass. 243, where the injunction "to hurry up" was held not to be material; Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231; Butterfield v. Railroad Co., 10 Allen, 532; Gilbert v. Guild, 144 Mass. 601, 12 N.E. 368.
Henry W. Bragg and Elisha Greenhood, for plaintiff.
There was clear and unmistakable evidence of reckless negligence on the part of the defendant towards the plaintiff. An employer must see that servants are promptly warned of the dangers of the place in which they are put to work, and they are not relieved of responsibility for the consequences of a failure on the part of such servants to receive such warnings by any delegation of such duty to warn to any agent or overseer, or by a neglect on his part to give such warning. Gilman v. Railroad Co., 13 Allen, 433, 441; Grizzle v. Frost, 3 Fost. & F. 622; Coombs v. Cordage Co., 102 Mass. 572, 599; Wheeler v. Manufacturing Co., 135 Mass. 294. The sufficiency of plaintiff's experience, as well as of his age and judgment, to relieve defendant of the duty of giving him notice, was a question for the jury. The undisputed evidence reported must conclusively show contributory negligence on the part of the plaintiff, considering all the admitted or undisputed facts in the case, including the age, experience, and intelligence of the plaintiff, and the danger to which he was exposed, and the means of knowledge afforded to him, to justify the court in taking the case from the jury on the question of due care. In other words, the conduct of the plaintiff at the time of the injury, considering all the circumstances shown by him, or undisputably shown against him, must have been of such a strikingly careless character that no rational man of ordinary experience and prudence could reasonably come to any other conclusion than that the plaintiff was himself responsible, or contributed to the responsibility for the injury suffered by him. Lane v. Atlantic Works, 107 Mass. 104, 108; Tyler v. Railroad Co., 137 Mass. 238, 242. The refusal of the judge to withdraw the case from the jury, cannot, in any case, be construed as an indication that, in his opinion, the jury ought to find in the plaintiff's favor upon this question. On the contrary, it is his duty to submit it to the jury, if there is any evidence to justify a finding, although in his opinion its preponderance should be against the plaintiff. Gaynor v. Railway Co., 100 Mass. 212; Fox v. Sackett, 10 Allen, 535; Warren v. Railroad Co., 8 Allen, 227; Meesel v. Railroad Co., Id. 234; Reed v. Deerfield, Id. 523; Gahagan v. Railroad Co., 1 Allen, 187; Gaynor v. Railroad Co., 100 Mass. 212. In a case of a boy of 13 years of age, who incited a dog, which bit him, the court held that a ruling which "entirely disregards the thoughtlessness and heedlessness natural to boyhood," would be erroneous; that the test is, "Would the injury have been prevented if the boy has exercised the thoughtfulness of one of his age, at the moment, without stopping to reflect?" Plumley v. Birge, 124 Mass. 57. See, also, Murley v. Roche, 130 Mass. 330; O'Connor v. Railroad Co., 135 Mass. 352; Munn v. Reed, 4 Allen, 431; Carter v. Towne, 98 Mass. 567; Lane v. Atlantic Works, 107 Mass. 104; Tyler v. Railroad Co., 137 Mass. 240.
OPINION
In order to show negligence on the part of the defendant, the plaintiff relies on the omission to give him suitable instruction in reference to the dangers to which he would be exposed in the course of his employment. His injury arose from coming in contact with the revolving cogwheels of a machine, and the instructions which he was entitled to receive must therefore have been concerning the...
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