Donnelly v. Booth Bros. & Hurricane Isle Granite Co.

• Decision Date: 23 March 1897
• Citation: 90 Me. 110,37 A. 874
• Parties: DONNELLY v. BOOTH BROTHERS & HURRICANE ISLE GRANITE CO.
• Court: Maine Supreme Court

37 A. 874

90 Me. 110

DONNELLY

v. BOOTH BROTHERS & HURRICANE ISLE GRANITE CO.

Supreme Judicial Court of Maine.

March 23, 1897.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by Michael Donnelly against the Booth Brothers & Hurricane Isle Granite Company to recover damages for personal injuries. There was a verdict for plaintiff, and defendants move for new trial, and bring exceptions. Motions and exceptions overruled.

W. H. Fogler and A. A. Beaton, for plain tiff.

C. E. & A. S. Littlefield, for defendants.

STROUT, J. Defendants operated a granite quarry at Long Cove. They were shipping granite paving blocks by a schooner lying at a wharf. The mode of loading the blocks on board was over a run or platform 16 to 18 feet long, one end resting upon the wharf, and the other supported by rigging attached to the vessel's throat halyards. This end extended to the forward hatch, and was elevated about seven feet above the deck. The paving blocks were placed in a car, and pushed over rails upon this run or platform, and dumped into the hold of the vessel. The plaintiff was in the employ of the defendants as a common laborer, doing such various kinds of work as he was directed to do. On September 29, 1894, he was injured, while engaged in loading paving blocks upon the schooner, by the falling of the run or platform upon which he then was with a car of blocks, near to the end of the platform, at the forward hatch. The fall was caused by the breaking of the fore throat halyard, which supported the right end of the platform at the hatch. The platform and loaded car weighed about two tons. The platform had been put in position 'in the afternoon of the preceding day, and fell at about 2 o'clock on the day of the accident. While in position, some thousands of paving blocks had been loaded into the vessel, having passed over this platform. It fell with the last load on the car. James M. Smith was superintendent of defendants' works at Long Cove, bad the general supervision for defendants of loading vessels, and hired and discharged the men. The platform belonged to defendants, and in suspending it the vessel's halyards were used, it was put up on this occasion by direction of Smith. The work was done by some laborers of defendants, called from their work of stowing stone posts in the schooner, aided by some of the crew of the vessel. These men selected the ropes used from a quantity of ropes on board. Plaintiff bad nothing to do with this, but after the platform was rigged in place he was directed by Smith to help load the blocks on board, and was so engaged when the accident occurred. He had no knowledge of the condition of the ropes which suspended the platform. That Mr. Smith, in all matters connected with the loading of the vessel, stood in the place of defendants, and represented them as a vice principal, is abundantly proved. Any negligence of his, therefore, in regard to duties resting upon defendants, is in law their negligence. There is no claim that any want of care on the part of plaintiff contributed to the accident. Dube v. City of Lewiston, 83 Me. 217, 22 Atl. 112; Mayhew v. Mining Co., 76 Me. 108, 109. The only issue presented was whether the defendants were guilty of negligence in securing the platform and the selection of gear; or whether, if there was any negligence, it was that of a fellow servant of the plaintiff, for which defendants were not responsible.

The defendants made six requests of the presiding judge for instructions, which were not given in terms, and have taken twenty-two exceptions to the charge, consisting of detached extracts therefrom. The whole charge is reported as part of the exceptions.

The duty of a master to his servant in furnishing machinery or appliances for the work has been repeatedly stated by this court. In Buzzell v. Laconia Co., 48 Me. 116, it is said: "it is the duty of every employer to use all reasonable precautions for the safety of those in his service. He should provide them with suitable machinery, and see that it is kept in a condition which shall not endanger the safety of the employed. If the employer knowingly make use of defective and unsafe machinery, when an injury is done to a servant ignorant of its conditions and in the exercise of ordinary care, he should compensate the person thus injured. * * * The superior intelligence and determining will of the master demand vigilance on his part that his servants shall neither wantonly nor negligently be exposed to needless and unnecessary peril. * * * The same reasoning which shows that the machinery and other instruments of labor should be safe would demand that the bridges used in passing from one part of the premises to another, or the ladders used in ascending to or descending from labor, and that the passageways in the premises of the employer and within the precincts of the place where the labor is to be done, should be safe and convenient." In Dixon v. Rankin, 14 Ct. Sess. Cas. 420, cited with approval by this court in same case, supra, it is said: "The master of men in dangerous occupations is bound to provide for their safety. This obligation extends to furnishing good and sufficient apparatus, and keeping the same in good condition." And in Hull v. Hall, 78 Me. 118. 3 Atl. 39, the court said: "To render the master liable, it must appear that he knew, or from the nature of the case ought to have known, of the unfitness of the means of labor furnished to the servant, and that the servant did not know or could not reasonably be held to have known of the defect."

And in Shanny v. Androscoggin Mills, 66 Me. 425, it is said that: "The employer provides the means of carrying on the business, and as a matter of course he assumes the responsibility that his work shall be done with due care; and, as the responsibility continues so long as the means are used, so must the same care be exercised in keeping the required means in the same safe condition as at first."

in a late case in New Jersey (Comben v. Stone Co.; 1897), reported in 36 Atl. 473, after stating the general principle, the court says: "The master is responsible for the negligence of any agent whom he may select to perform this duty for him if the agent fails to exercise reasonable care and skill in its performance." See, also, Railroad Co. v. Ross, 112 U. S. 390, 5 Sup. Ct. 184.

And in cases like Kelley v. Norcross, 121 Mass. 508, where it was held that if "the master does not undertake the duty of furnishing or adapting the appliances by which the work is to be performed, but this duty is intrusted to or assumed by the workmen themselves, within the scope of their employment, he is exempt from responsibility, if suitable materials are furnished and suitable workmen are employed by him, even if they negligently do that which they then undertake," the exemption fails if "suitable workmen" are not employed. Here, common laborers, engaged in stowing stone posts in the schooner, were charged with the duty of securing the platform, and allowed to select the gear, without instruction, and there is no evidence that they possessed the requisite skill, intelligence, or care,— a fact to be shown by the defendants, if they would escape responsibility. The law will not allow an employer, whose duty it...