Kirk v. Sturdy

• Decision Date: 23 November 1904
• Citation: 187 Mass. 87,72 N.E. 349
• Parties: KIRK v. STURDY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 87

72 N.E. 349

KIRK v. STURDY et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 23, 1904

COUNSEL

F. S. Hall, for plaintiff.

W. H Fox and F. B. Byram, for defendants.

OPINION

HAMMOND J.

The law as to the duty owed by the master to the servant with respect to the tools and materials of which the latter is to make use, and the place in which he is to work, is well settled by numerous decisions; and, speaking generally, it is that the master is to use due care to see that in neither is there danger to the careful servant. Where these things are under the exclusive control of the master, he is answerable for such care, whether the duty be performed by him in person, or be delegated to another. He cannot free himself from responsibility for the proper discharge of a duty resting upon him in person by delegating its performance to another. But even where the tools and materials are exclusively under the control of the master, the degree of care required, as in other branches of law and in every line of human conduct varies, of course, with circumstances. In Garragan v Fall River Ironworks, 158 Mass. 596, 33 N.E. 652, which was an action by a servant against his master for injuries received by reason of the rotten condition of the bagging of a bale of cotton, it was held that a purchaser of cotton in bales is not bound to have the bagging inspected, with a view to ascertaining whether it is strong enough to hold iron hooks inserted in it for the purpose of moving the cotton. In Shea v. Wellington, 163 Mass. 364, 40 N.E. 173, it was held that the owner of a quarry did not owe to his workmen the duty of inspecting an exploder well and favorably known in the market. In the first case it was said: 'The performance of such a duty [of inspection] would be impracticable, and no case is cited which holds that such a duty exists.' In the second case it was said that, in view of all the circumstances, it would be unreasonable to hold 'that quarrymen using these exploders owed their employés a duty to have them inspected by a competent person as to the mode and workmanship of their construction.' In Mooney v. Beattie, 180 Mass. 451, 62 N.E. 725, which was an action by a mason against his master, a building contractor, for injuries caused by the explosion of a stone from dynamite left in it after it had been blasted from the quarry, where it appeared that the defendant purchased the stone in the usual course of business, without inspecting it, the same principle was applied; the court saying that 'such a course of inspection, while possible, is manifestly impracticable, and it is never done.' In all of the above cases the appliances were under the exclusive control of the master, and allusion to them is made here to illustrate the doctrine that even where the master has such control the duty resting upon...