Geloneck v. Dean Steam Pump Co.

• Decision Date: 25 February 1896
• Citation: 165 Mass. 202,43 N.E. 85
• Parties: GELONECK v. DEAN STEAM PUMP CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 202

43 N.E. 85

GELONECK v. DEAN STEAM PUMP CO.

Supreme Judicial Court of Massachusetts, Hampden.

February 25, 1896

The court instructed the jury in part as follows:

"The plaintiff now relies upon the second and third counts in the declaration. Those counts are under the employers' liability act, where the damage is limited to the sum of $4,000, and where the law requires the plaintiff to serve notice upon the defendant, stating the time, place, and cause of the injury; and, in view of the fact that many of these notices were hastily prepared, and turned out to be in some respects defective, the legislature provided that a deficiency of form or deficiency of substance should not necessarily be fatal, provided it was made to appear, the burden being upon the plaintiff, that there was no intention to mislead the defendant by the notice, and that the defendant was not misled. Now, I think I must say to you that this notice, in and of itself, would not be sufficient, under the statute. But it is a matter for you to consider, taking all the evidence in the case, all the circumstances, the place where this accident happened, the fact (if it be a fact) that Mr. Ryan, one of the foremen or superintendents (call him what you please) was present, and another subforeman of another room was present,--it is for you to determine, upon this evidence, whether you think there was any purpose on the part of this plaintiff to mislead the defendant in this notice; and if you find there was not, it is for you also to determine whether, in fact the defendant was misled, or whether, upon receiving notice, in view of the facts which you should find, if you sustain the notice, were known to the defendant, taking those facts into consideration, whether the defendant did not know and understand the occasion to which this notice referred, and did not understand the cause of the accident. If you are satisfied that notwithstanding any infirmities of the notice, there was no intention to mislead the defendant, and, when it got this notice, in view of the facts known to it, it was not misled, and understood what the plaintiff had in mind, the occasion to which he referred, and the time and place when and where he received his injury, so they were not misled and deceived about it, then it is competent for you to find that this notice is a sufficient notice; and, unless you are so satisfied, then the notice would be defective, and that would be fatal, in any event, to the plaintiff's case. It is not a thing that we can set aside. It is not the intention of the law to dispense with notice. The law provides that a notice shall be given. It is a security that the legislature intended to give defendant under this statute. The law was passed largely in the interests of the laborer, but in some respects it was passed in the interest of the master,--of the employer,--and this is one of those respects. By the English law, the party injured was not required to give such notice; but the legislature thought fit to require that a notice should be given within 30 days, so that the employer could have his attention called to it, and, if he chose to investigate the facts, the circumstances, and perhaps determine upon the question of whether the plaintiff had any meritorious claim, whether it was one he ought to refuse to recognize, or ought to settle, or what he should do, and that provision in the law remains. As I say, owing to the way in which these notices were prepared, it often happened there was a defect, so that the judge presiding at the trial had to rule that the notice was defective, when, perhaps, the error might not have been to the prejudice of the master; and so the legislature made this additional provision, that if it appeared, though the notice was defective, there was no intention to mislead, and under all the circumstances it was made to appear that the master was not misled, then the notice might serve.

"Now passing from that, the plaintiff rests his case here upon two main grounds. One ground is, he says, that, through the negligence of the defendant, or of somebody acting for the defendant, having charge of its ways, works, or machinery there was a defect in its ways, and its works, and its machinery, and that that defect contributed as a direct cause to the plaintiff's injury. Of course, if there was a defect that did not have any connection with causing the injury, then it was nothing for the plaintiff to complain of. We are not here trying any moot cases, or any speculative cases. The question is, whether there was a defect in the ways, works, and machinery, within the meaning of the law, that contributes directly as a proximate cause to produce this injury, and whether that defect, if it existed, existed through the negligence of the defendant corporation, or of somebody representing it in the care of its ways, works, and machinery. Well, you have heard the evidence in regard to these trucks and this hand car, and the tracks, the door sills, and the way in which things were adjusted. You have heard the evidence in regard to the use of these trucks at this place and some other places, for the same kind of uses, it is said, for which they were applied here. Now, the plaintiff claims that you ought to be satisfied that the relation of things, as they are disclosed by the evidence, was such as to render the defendant's establishment, its works, its machinery, its appliances, with reference to the work which the plaintiff was called upon to do, not reasonably safe and suitable. Of course, it is not necessary, under this statute, that any particular instrument should be defective in itself. I mean by that, that it should have a flaw in it. For instance, take this truck. It is not necessary that the plaintiff should show that there was a fault in the truck,--that it had a cracked wheel, or a broken axletree, or something of that kind, that gave way. In the sense of the law, a thing may be found, if the jury are satisfied that it ought to be found, to be not reasonably safe and suitable, if it is insufficient and unsuitable for the purposes to which it is applied, and intended to be applied, and under the conditions under which it is used, and intended to be used. Take the case in the books, an English case, where a man had to build a staging, and, to hold up one end board that was under the staging, instead of having a pole, and nailing the end board to the pole, as common people, perhaps, in this country would, he got a ladder and put the ladder up in the place of the pole, and ran the board through on to the round of the ladder, and then laid the planks on, and made a staging. While the ladder was not found to be a defective ladder,--that is, there was no break in it,--yet it broke down, gave way, and the staging came down; and the court of last resort in England, in discussing the question, said that that staging, that ladder, might be found to be defective, within the meaning of the law, because the ladder was an unsuitable thing to be used in that place, unsuitable for the purpose for which it was used, and so that the staging might be found to be defective in that way. So, generally, I suppose, where you have to consider a set of arrangements in a mill, or around a factory or iron works, the question is not limited to whether there is something that has got a weak spot in it, something that has got a crack, or something that is decayed; but it is a little broader than that. It involves an inquiry as to whether the appliances, as they are put together and used, and intended to be used, are reasonably safe and suitable. So, here, the plaintiff says you ought to be satisfied that, taking this truck, in the way in which it was constructed and used, and the track, and the door sills over which the truck was to be hauled, in transporting these pumps and other heavy things, the arrangements there, taken together, were not reasonably safe and suitable arrangements, and that the defendant, or whoever acted for the defendant, would, in the exercise of reasonable and ordinary care, have known it. On the contrary, the defendant says they were reasonably safe; they were suitable; there was no neglect. They had been used for an indefinite length of time with no accident. The defendant says, and says truly, 'We are not obliged to have a faultless arrangement in our mill. We are not obliged to have things so that there couldn't anybody find any fault. The law does not require that. We are to have them reasonably safe and suitable. At any rate, we are to use reasonable and ordinary care that they may be.' And, if reasonable and ordinary care has been used about them, then the defendant is not responsible upon this point, even if there was a defect, because the law holds, and intends to hold, the defendant, in these cases, responsible only where the defendant itself, or somebody authorized to act for it in regard to the matter, has failed to use reasonable and ordinary care; in other words, has been negligent. Negligence on the part of the defendant, or somebody authorized to act for the defendant, is the gist of the liability.

"Well then, the plaintiff also says, in his third count, that, aside from this question of whether there was a defect, within the meaning of the law, in the truck and in the car, and in the arrangements that were made as to how the car should be used and operated,--aside from that there is another ground, the plaintiff says, on which the defendant is liable to him in this action, and that ground is the negligence of Mr. Ryan, acting as superintendent, and directing the movement and transportation of this pump. Now, there is a provision in the law which changes in that respect the common law, and whihich allows a lababorer to...