Pingree v. Leyland

• Citation: 135 Mass. 398
• Parties: Henry E. Pingree v. Frederick R. Leyland
• Decision Date: 07 September 1883
• Court: United States State Supreme Judicial Court of Massachusetts

135 Mass. 398

Henry E. Pingree v. Frederick R. Leyland

Supreme Court of Massachusetts

September 7, 1883

Suffolk. Tort for personal injuries received by the plaintiff, on May 6, 1878, in using a winch on board the steamship Illyrian, of which the defendant was the owner, for the purpose of discharging cargo from the steamship. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Exceptions sustained.

W. G Russell & L. S. Dabney, for the defendant.

W Gaston, (A. Cottrell with him,) for the plaintiff.

C. Allen J. Devens & W. Allen JJ., absent.

OPINION

C. Allen J.

The questions to be determined in this case are not whether the instructions to the jury were correct statements of general rules of law in regard to the liability of a master to his servant, or in regard to the circumstances under which a servant who is injured will be debarred from a recovery of damages by reason of his previous knowledge of the risk he was running; but whether, upon the evidence as it stood, the defendant was entitled to have the case withdrawn from the jury altogether, by a ruling that the plaintiff could not maintain the action upon either of the two grounds stated; namely, that there was no evidence of any relation between the plaintiff and the defendant which could render the defendant liable to the plaintiff for the condition of the winch, whatever it might be; and that the plaintiff knew or ought to have known what the condition of the winch was, and therefore must be held to have assumed the risk of using it in that condition. We are of opinion that the defendant was entitled to the ruling which he asked for, upon both grounds.

1. It was necessary for the plaintiff to introduce evidence sufficient to warrant the jury in finding that he was the defendant's servant, and this he undertook to do by showing that he was employed by the stevedore, Turner, and by seeking to raise an inference that Turner was employed by the defendant as his servant, and that the defendant undertook to furnish to Turner winches for the discharge of the cargo. But there was nothing to show that Turner was acting otherwise in discharging the cargo, than in the ordinary relation of a stevedore to the owner, which is not that of a servant, but of an independent contractor, not under the immediate supervision and control of an employer. Linton v. Smith, 8 Gray 147. There was nothing to show the terms of any contract between the defendant and Turner, and the judge properly remarked to the jury, that it was not for them or for him to guess what it was. There was no presumption that Turner was acting as a servant of the defendant, or that the defendant undertook to furnish a suitable winch to be used in unloading the ship; and there was no evidence which would warrant the jury in assuming or inferring either of those facts. These were matters for the plaintiff to prove by evidence. There was no evidence which went further than to allow an inference that the defendant permitted the stevedore and his men to use the winch, in such condition as it might be in at the time of the arrival of the ship in port; but with no express or implied contract on his part that it should be in a safe or suitable condition for use. A mere permission to use the winch, under the circumstances, would impose no obligation or liability on the defendant in consequence of its defective condition. There being no evidence to raise a presumption against the defendant on this point, there was no occasion for him...