Feeney v. York Mfg. Co.

• Decision Date: 24 October 1905
• Citation: 189 Mass. 336,75 N.E. 733
• Parties: FEENEY v. YORK MFG. CO. DONOVAN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 336

75 N.E. 733

FEENEY

v.YORK MFG. CO.

DONOVAN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 24, 1905.

Exceptions from Superior Court, Suffolk County; John H. Hardy, Judge.

Actions in tort for personal injuries by John Feeney against the York Manufacturing Company and by John J. Donovan against the same defendant. There were verdicts for plaintiffs, and defendant brings exceptions. Overruled.

Henry A. Richardson, for plaintiffs.

Frank N. Nay and Leon M. Abbott, for defendant.

BRALEY, J.

The temporary staging provided for the use of the plaintiffs collapsed because constructed of insufficient materials, but under Rev. Laws, c. 106, § 71, it formed no part of the permanent ‘ways, works, and machinery’ of the defendant. Burns v. Washburn, 160 Mass. 457, 36 N. E. 199. By the statute the right of recovery, however, is not limited to injuries caused to employés by defective permanent appliances, but also embraces wrongs that may arise from negligence of the employer, or of those properly representing him, in directing an employé to use an unsafe appliance, even though it may be only of a temporary character. Arkerson v. Dennison, 117 Mass. 507;Ryan v. Tarbox, 135 Mass. 207;Haley v. Case, 142 Mass. 316, 7 N. E. 877;Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766,5 L. R. A. 667;Meagher v. Star Laundry Co., 187 Mass. 586, 73 N. E. 853. The doctrine of exemption from liability of an employer who buys from reputable makers for use in his business a completed machine or other appliances which generally are recognized as being suitable, but prove to be unsound by reason of latent defects, has no application in the present case, as it appears from the evidence that upon a superficial examination the structural weakness of the staging could have been readily discovered. Roughan v. Boston & R. Block Co., 161 Mass. 24, 36 N. E. 461;Reynolds v. Merchants' Woolen Co., 168 Mass. 501, 47 N. E. 406. See, also, Toy v. United States Cartridge Co., 159 Mass. 313, 315, 34 N. E. 461. It also may be said that if sufficient and suitable materials had been provided by the defendant, and the plaintiffs in their own way had built the staging they were to use, the risk of defective construction would have been assumed by them. Colton v. Richards, 123 Mass. 484, 488;Reynolds v. Barnard, 168 Mass. 226, 46 N. E. 703;Thompson v. Worcester, 184 Mass. 354, 68 N. E. 833. But being ignorant of its construction or suitability, when directions were given by a person intrusted with supervision to use a completed staging, they had a right to rely on the presumption that their employer had performed its duty, with the implied assurance that the structure so furnished could be safely used. Connolly v. Waltham, 156 Mass. 368, 370, 31 N. E. 302;O'Driscoll v. Faxon, 156 Mass. 527, 31 N. E. 685;Brady v. Norcross, 172 Mass. 331, 333, 52 N. E. 528;Cunningham v. Atlas Tack Co. (Mass.) 72 N. E. 325. In the discharge of this duty, the defendant's liability was not limited alone to the actual knowledge of either its superintendent or of an underforeman, who acted as superintendent, that the staging was unsound; it included also responsibility for the negligence of the acting superintendent in not ascertaining that fact before directing the plaintiffs to use the staging, if by the exercise of due diligence on his part this condition, upon examination would have been made known to him. Arkerson v. Dennison, ubi supra; Connolly v. Waltham, ubi supra. Such an inquiry is a question of fact, and, as the defendant's first request could not be given, both cases were rightly submitted to the jury, with instructions that were sufficiently full.

A further exception is presented in the first case relating to the effect to be given to the admission of certain evidence. After his injury the plaintiff became an inmate of a hospital, which kept daily records of the medical treatment of its patients. Subject to his exception, and without the testimony of the person who made the entry concerning him, or that of any one...