Moynihan v. Hills Co.
| Decision Date | 04 May 1888 |
| Parties | MOYNIHAN v. HILLS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D.W. Bond and J.I. Cooper, for defendant.
There was no evidence upon which the plaintiff was entitled to recover. To entitle the plaintiff to recover, it must appear (1) that he was in the exercise of due care; (2) that he did not assume the risk which he incurred by working upon the machine by which he was injured; and (3) that there was negligence on the part of the defendant, which was the sole cause of the injury. There was no negligence on the part of Marcil. If a master employ a competent servant, he is not responsible for an error of judgment of the servant. Robinson v. Manufacturing Co., 143 Mass. 528, 534 10 N.E. 314. No inspection would have discovered any crystallization of the rod, if any existed. No inspection would have discovered any defect at the place where the rod broke. Under the decisions in Massachusetts, Marcil was a fellow-servant. Johnson v. Boat Co., 135 Mass. 209 211, 212; Rogers v. Manufacturing Co., 144 Mass 198, 11 N.E. 77; Gilman v. Railroad Co., 13 Allen, 433, 440. The negligence of Marcil was not necessarily the negligence of the corporation; and in refusing to instruct the jury that the plaintiff could not recover if the accident happened by reason of the negligence of Marcil, and in ruling that the plaintiff could recover if the negligence of Marcil was the sole cause of the injury, the court erred.
J.C. Hammond, for plaintiff.
The prayer of one defendant as to the effect of any negligence of Marcil, and the instructions given by the court, clearly have reference to this work of reconstructing the machines, and apply to that only. In doing that work, which is the only work he ever did on these machines, he was charged with the master's duty to furnish safe machines, and was the agent of the corporation, and not a fellow-servant. Ford v. Railroad Co., 110 Mass. 241; Holden v. Railroad Co., 129 Mass. 268; Lawless v. Railroad Co., 136 Mass. 1; Hough v. Railway Co., 100 U.S. 213. On all the evidence reported, the plaintiff was clearly entitled to have the case submitted to a jury. The fact that the machine in question broke and fell from the use for which it was designed and intended, is evidence that it was a defective and unsafe machine. White v. Railroad Co., 144 Mass. 404, 11 N.E. 552.
OPINION
The defendant's request for a ruling that, upon the evidence, the plaintiff was not entitled to recover, was rightly refused. There was testimony tending to show that the plaintiff was using the machine in a proper manner, and that he did not know it was out of repair. This would warrant a finding that he was in the exercise of due care. The fact that the machine broke, in the manner described, from the use for which it was intended, was evidence that it was defective, and unsafe; and the fact that the defendant was then using it in its business, if left unexplained, was some evidence of the defendant's negligence. White v. Railroad Co., 144 Mass. 404, 11 N.E. 552. But, beyond that, it was proved that the rod which broke was designed to carry one iron ball weighing about 113 pounds, and that, under the defendant's direction, the machine had been reconstructed, and the rod made to carry two such balls. There was also testimony that it had been subjected to a use which caused the iron in the rod to vibrate while under a strain and which tended to crystallize it, and make it brittle, and that there had been no inspection of it to ascertain its condition for nearly two years before the accident. The defendant's secretary and treasurer, who was also its superintendent and one of its directors, testified that the rod was slightly discolored at the place of the fracture, as if the break was not fresh, and that it appeared to him as if the iron had not freshly parted. Upon this evidence, it was for the jury to decide whether or not the defendant was negligent.
The court was also requested to rule that, if the accident happened by reason of negligence of Marcil, the plaintiff could not recover. This ruling was refused, and the jury were instructed that, if Marcil was negligent in making the repairs and reconstructing the machine, it would be the neglect of the corporation, for which the corporation would be answerable, if it was the sole cause of the injury. The principal question in the case is whether or not this instruction was correct. The rights of a plaintiff who has been injured by defective machinery of a defendant for whom he was working, depend upon the contract, express or implied under which he was employed. In making a contract for service, if the business is to be carried on by many persons working together in a factory, the parties naturally contemplate the existence of machinery, tools, and appliances, and the presence of other employes who will be fellow-servants of him who is contracting to serve. In the absence of an express stipulation, the master impliedly agrees to provide and maintain reasonably safe and suitable machinery and appliances, so far as the exercise of proper care on his part will secure them, and the servant agrees to assume all the ordinary risks of the business, and, among them, the risk of injury from negligence of his fellow-servants. This obligation which the master assumes is personal, and pertains to him in his relation to the business as proprietor, and in his relation to the servant as master. It has been repeatedly held that he cannot discharge it by delegating the performance of his duty to another. Elmer v. Locke, 135 Mass. 575; Lawless v. Railroad Co., 136 Mass. 1; Killea v. Faxon, 125 Mass. 485; Kelley v. Norcross, 121 Mass. 508; Ford v. Railroad Co., 110 Mass. 240; Hough v. Railway Co., 100 U.S. 213; Flike v. Railroad Co., 53 N.Y. 549. And, if he employs agents or servants to represent him in the performance of this duty, they are to that extent agents or servants for whose conduct he is responsible. The very nature of the implied contract created by the hiring, whereby he undertakes to use proper care in always providing safe tools and appliances, is inconsistent with his delegation of the duty to a fellow-servant, for whose negligence he is not to be responsible. His obligation involves the exercise of every kind of care and diligence which is necessary to give him knowledge of the condition as to safety of his machinery and appliances, so far as such knowledge is obtainable by reasonable effort. His duty relates to the condition of these articles when they come to the hands of his servants for use, and the performance of that duty must carry him just so far into details as it is reasonably necessary to go, in view of the nature and risks of the business, to enable him to reasonably protect his servants from a danger which he should prevent. It is obvious that difficult questions arise in cases of this kind in determining the implied obligations of the respective parties under peculiar circumstances. In many kinds of business the condition of a machine as to safety is constantly changing with the use of it, and it is safe or unsafe, at a given moment, according as it is properly or improperly used and managed by the servant who operates it. Moreover, certain kinds of repairs can be conveniently and properly made, under direction and supervision, by servants regularly employed in the business. In such cases, both parties to the contract of service must be presumed to have contemplated that, to a certain extent, fellow-servants would be employed by the master to do work in keeping the machinery safe....
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