Murphy v. O'neil

• Decision Date: 05 January 1910
• Citation: 204 Mass. 42,90 N.E. 406
• Parties: MURPHY v. O'NEIL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 42

90 N.E. 406

MURPHY v. O'NEIL et al.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1910

COUNSEL

J. W. Cummings and C. R. Cummings, for plaintiff.

David F. Slade and Foster R. Greene, for defendants.

OPINION

SHELDON J.

This case comes to us upon a report, by which it appears that the plaintiff recovered a verdict upon the second count only of her declaration, for the conscious suffering sustained by Murphy, her intestate, in his lifetime. The defendants excepted to the refusal of the judge to order a verdict in their favor; and the plaintiff excepted to the ruling that there was no evidence of a defective condition of any ways works or machinery of the defendants, and so that she could not recover under the third count of her declaration for death of Murphy. No question arises upon the fourth count of her declaration, that having been waived at the trial.

1. While a verdict doubtless might have been returned for the defendants upon the issues of the due care of Murphy and their negligence, yet we are of opinion that these questions were for the jury. There was evidence that the harness had become worn, and that the breeching straps had been spliced that this ought not to have been done; that they appeared good and sound upon the outside, but that the life, the strength, was gone out of the leather, and the inside was smooth and it was liable to come apart. As to both of the main questions involved, the case comes under the rule of Lundergan v. Graustein & Co. (Middlesex, Nov. 22, 1909) 89 N.E. 1034, decided since this case was argued, Palmer v. Coyle, 187 Mass. 136, 72 N.E. 844, and Jones v. Pacific Mills, 176 Mass. 354, 57 N.E. 663. For the same reasons it was for the jury to say whether Murphy had assumed the risk of the accident that happened. The jury could find that the horse's running away and the injury to Murphy were the direct result of the breaking of the strap, that this was due to its defective condition, that the defendants were at fault for the existence of this defective condition, and that Murphy himself was in the exercise of due care and had not assumed the risk of what happened.

2. The plaintiff's exceptions make it necessary to determine whether the harness of the horse which Murphy was driving was a part of the 'ways, works and machinery' of the defendants within the meaning of those words as used in Rev. Laws, c. 106, § 71, cl. 1, now embodied in St. 1909, p. 765, c. 514, § 127, cl. 1. The defendants were wholesale and retail liquor dealers, and employed five drivers and several horses and wagons to carry and deliver their goods. Murphy was one of these drivers, and the accident occurred while he was driving a horse attached to a delivery wagon of the defendants, being then at work in their employ and engaged in their business.

It was held in Yarmouth v. France, 19 Q. B. D. 647, that under the English employer's liability act then in force a horse used by a wharfinger in his business of delivering goods from his wharf to the houses or stores of his customers was a part of the wharfinger's plant, and that a vice of such a horse rendering it unfit to be used in the business was a defect in the plant within the meaning of that act. But that decision does not help this plaintiff; for our statute though largely following the act which was there considered, makes employers liable for defects only in their ways, works and machinery, and not, under the statute, in their plant. And Lindley, L. J., considered in that case (page 658) that the chief difficulty in holding that the horse was a part of the plant arose from the use in the act of the words 'defect' and 'ways and machinery.' Nor is the plaintiff's contention helped by our own decisions as to the meaning of the word machinery in the various connections in which it has been used. Commonwealth v. Lowell Gaslight Co., 12 Allen, 75; Seavey v. Central Ins. Co., 111 Mass. 540; Bowers v. Connecticut River Railroad, 162 Mass. 312, 38 N.E. 508; McKay v. Hand, 168 Mass. 270, 47 N.E. 104; Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417, 422, 50 N.E. 1031; Nordquist v. Fuller, 182 Mass. 411, 65 N.E. 834; Boucher v. Robeson Mills, 182 Mass. 500, 65 N.E. 819; Higgins v. Higgins, 188 Mass. 113, 74 N.E. 471. In none of these decisions was the word 'machinery' made to include anything which was not either a part of some machine by which power was created or applied, or used in connection with such a machine, or which was not one of the fixed devices or instrumentalities used in the manufacture or distribution of a product, or a mechanical device or apparatus constructed, adapted and used as a means of accomplishing some definite object. Nor do we find a broader signification given to this word in any of the decisions in other states to which, our attention has been called. The plaintiff...