Osborne v. Morgan

• Decision Date: 04 March 1884
• Citation: 137 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John Osborne v. Charles H. Morgan & others

137 Mass. 1

John Osborne v. Charles H. Morgan & others

Supreme Court of Massachusetts, Worcester

March 4, 1884.

Argued October 7, 1881, October 3, 1883.

Decided October, 9, 1882, April 4, 1883. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Tort against Charles H. Morgan, Horace A. Young, William T. McNeil, and Eleazer Hinchley, for personal injuries occasioned to the plaintiff by the falling of a traverse pulley, block, and chain from an elevated railway in one of the mills of the Washburn and Moen Manufacturing Company in Worcester. After the former decision, reported 130 Mass. 102, the case was tried in this court, before Lord, J., who allowed a bill of exceptions, in substance as follows:

The block and chain constituted a heavy apparatus weighing between two and three hundred pounds, which was placed upon an elevated single railway suspended from a truss beam. The chain was an endless chain, and weighed one hundred pounds, and extended nearly to the ground from a height of eighteen feet. The railway was put up for general use in the mill, and as a permanent part of its structure. The traverse pulley was hung upon the railway, was movable backward and forward, and was used for the purpose of hoisting rolls from the rolling machinery placed in a line directly under the railway.

The plaintiff was a carpenter employed by said company, and it was his duty to do such general work as might be required of him in and about the manufacturing establishment. That portion of the establishment in which the railway and block and pulley were placed was a new mill, and was at the time of the plaintiff's injury not fully finished, although the work of rolling wire had already been begun in it, and was in operation at the time the injury occurred.

A closet for the use of the persons employed in the mill had been constructed upon one side of the room, one end of which closet was directly under one end of the railway, and for that reason was found to interfere with the convenient moving of the pulley and traverse along the line of the railway; and the plaintiff, on February 28, 1877, was directed to cut out a portion of the closet and so shorten it as not to be in the way of the convenient operation of the chain and pulley, and, while so employed, the traverse pulley and block rolled off the end of the railway upon the plaintiff, and he received the injuries complained of.

The plaintiff offered to prove, and contended from the fact that the block moved in that direction, that the railway inclined upon a downward grade towards the end from which the block fell; and that the jarring produced by the operation of the machinery caused the same to move along the railway until it fell upon him. The railway extended from one side of the mill across it, and was designed to reach the other side; but it only reached within eighteen inches or two feet of the side of the mill at the end where the block fell, leaving an open space through which it might fall, and no guard or stop was placed there to prevent its falling; and this was the negligence complained of by the plaintiff.

The defendant Morgan was the general superintendent of the entire works of the Washburn and Moen Manufacturing Company, and had the general superintendence of the construction of the mill and the arrangement of the mechanism, and gave the direction for the construction of this railway and the apparatus connected with it. He made a free-hand sketch of the railway, and caused one of the employees named Daniels to make a mechanical drawing of the arrangement, and designed the railway to reach from side to side of the mill, and gave the general orders, but not the minute details, for the construction of the same. These plans were made in the October prior to the injury.

Morgan gave the defendant McNeil directions to put up the railway, and his attention was not called to it from that time until the day of the injury. On the morning of the injury, and about four hours before it, he came to that part of the works, and took hold of the chain and drew the truck to a point near the corner of the closet and a few feet from where it finally fell, and, finding that the closet was in the way of its passage, gave directions to McNeil to have the closet cut off so that the chain might conveniently pass at that point, and McNeil gave directions to the plaintiff to do the work necessary for shortening the closet. Morgan's attention was first called to the defect directly after the injury, when he declared that leaving the railway in that condition, without a stop, was gross carelessness.

The defendant Young was the superintendent of all the machinist's department, and had charge of constructing and putting up machinery, and was master mechanic of said company, and took his orders from Morgan. He received the drawings for the construction of the railway, after they were completed, from Daniels, and gave the drafts to the foreman of the machine-shop, Hinchley, one of the defendants, with directions to have the railway constructed ready to put up. The drawing designed the rail to reach from side to side of the mill. The railway was constructed in the machine-shop, and from there carried to the mill, placed upon the ground ready to be hung, and was to be hung by McNeil, who was the master carpenter and builder for the company, by whom it was soon after hung, some time in December, and left in the condition in which it was at the time of the injury.

About a week before the injury, Young discovered the existence of the open space at the end of the rail, and ordered Hinchley to put a stop there, which the plaintiff contended was ordered to prevent the tackle from rolling off the railway; but the same was not done by any person until after the accident.

The plaintiff had no knowledge of the existence of the defect, and, from his employment or connection with the structure, had no reason to know it.

Upon the above offer of proof, the judge ruled that the action could not be maintained, and directed a verdict for the defendants; and the plaintiff alleged exceptions.

The case was argued at the bar in October, 1881, by G. F. Verry & H. L. Parker, for the plaintiff, and by W. S. B. Hopkins & F. T. Blackmer, for the defendants; and was reargued in October, 1882, by Parker, for the plaintiff, and by Hopkins, for the defendants.

W. Allen J. It was decided in this case, in 130 Mass. 102, that the defendants might be liable to the plaintiff for damages occasioned by their negligence, although the parties were fellow servants. The question presented on these exceptions is whether there was evidence of negligence in the offer of proof made by the plaintiff. We think the case should have been submitted to the jury. There was some evidence that the rail was unsafe for the use for which it was intended; that the defendants, or some of them, were charged with, and owed to the plaintiff, the duty of seeing that it was in a safe condition; that they negligently allowed it to be unsafe; and that the plaintiff was injured in consequence.

The parties were fellow servants, and the defendants cannot be held liable to the plaintiff on account of any duty which they owed to their employer only, or for any negligence which was only a breach of contract with, or duty to, the common employer. They must have violated some duty which they owed to the plaintiff. The fact that they were entrusted by the employer with the duty of putting and keeping the appliance in a safe condition would be immaterial, except as it should show that they had such authority in regard to it, such charge and control of it, as would raise a duty of due care in respect of it towards others. A servant in charge of his master's property is liable to strangers for negligence in the management of it, not because he owes a duty in respect of it, to his master, but because the possession and charge of property put him under an obligation of care in the use and management of it. The negligence must be negligence to strangers, and not to the master only. The violation of the master's orders, or the negligent or improper use of his property, not violating the duty which the servant owes to strangers, would not make him liable to them.

Whether there was negligence toward the plaintiff on the part of each defendant in the present case, was a question involving considerations of the charge and control he had over the appliance, and his knowledge and conduct in regard to it, as well as the relation of the plaintiff to it. Though the fact that parties are fellow servants in the business in which appliances are used does not absolve them from the obligation to each other to exercise due diligence in the use and care of such appliances, it is to be considered, with other circumstances, in determining what constitutes due care in any particular case. So far as the employment of the party injured is such that it involves a duty of care and watchfulness, or opportunity or obligation of knowledge, in regard to the dangerous object, it is material, not only on the question whether he himself exercised due care, but upon the question whether a particular act or omission of a fellow servant was wrongful towards him. The general rule, that the relation of each party to the subject matter is to be considered in determining the precise duty which either owes to the other in relation to it, is to be applied.

In the opinion of the court, evidence appears in the exceptions which ought to have been submitted to the jury upon the right of the plaintiff to recover against one or more of the defendants, and the evidence is not stated with sufficient fulness to make it profitable now to...