Robinson v. George F. Blake Mfg. Co.

• Decision Date: 23 February 1887
• Citation: 10 N.E. 314,143 Mass. 528
• Parties: ROBINSON v. GEORGE F. BLAKE MANUF'G CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 528

10 N.E. 314

ROBINSON v. GEORGE F. BLAKE MANUF'G CO.

Supreme Judicial Court of Massachusetts, Bristol.

February 23, 1887

COUNSEL

C.W. Clifford, for defendant.

The question is whether the failure to provide additional materials, being a failure of judgment on the part of Atkins is attributable to the defendant, or whether it was negligence of a fellow-servant, and so within the risk assumed by the plaintiff. It has been held several times in this commonwealth that the duty of furnishing suitable and sufficient materials is one which the master cannot delegate, and that the failure of the person intrusted with this duty by the master to fully discharge it makes the master responsible. Elmer v. Locke, 135 Mass. 577. A distinction is made as to temporary stagings. See Floyd v. Sugden, 134 Mass. 563. It is difficult to see how in Hoppin v. Worcester, 140 Mass. 222, 2 N.E. 779, the court could hold that the defendant was not responsible for the defective bracket, if the defendant, as matter of law could not delegate the duty of furnishing materials. But, in order to justify the ruling asked for, that upon the evidence the plaintiff was not entitled to go to the jury, the defendant must also show by the uncontroverted facts that the hoisting-machine was one which the master was not bound to furnish as a completed structure, but that its construction was a part of the work which the plaintiff was employed to perform. See Flynn v. Salem, 134 Mass. 351. See cases of Farwell v. Boston & W.R.R., 4 Metc. 49; Duffy v. Upton, 113 Mass. 544; Arkerson v Dennison, 117 Mass. 407; Kelley v. Norcross, 121 Mass. 508; Harkins v. Standard Sug. Ref., 122 Mass. 400; Zeigler v. Day, 123 Mass. 152; Killea v. Faxon, 125 Mass. 485; Mulchey v. Methodist Reg. Soc., Id. 487; Jones v. Granite, 126 Mass. 84; Floyd v. Sugden, 134 Mass. 563; Flynn v. City of Salem, Id. 351; Johnson v. Boston Tow-boat Co., 135 Mass. 209; Elmer v. Locke, Id. 575; Clark v. Soule, 137 Mass. 380.

Cummings & McDonough, for plaintiff.

The neglect was not simply in the construction, but in the failure to provide the materials with which to construct the hoisting apparatus, and for this neglect the defendant is responsible. Ford v. Fitchburg R.R., 110 Mass. 240; Clark v. Soule, 137 Mass. 380. The construction of the hoisting apparatus is a necessary part of the work to be done, and a means for its accomplishment by those who undertake it. When the preparation of such appliances is not intrusted to nor assumed by the workmen, the master may be guilty of negligence if defective appliances are furnished, even though the workmen themselves are employed in furnishing them. Arkerson v. Dennison, 117 Mass. 407; Mulchey v. Methodist Reg. Soc., 125 Mass. 487; Clark v. Soule, 137 Mass. 380; Elmer v. Locke, 135 Mass. 575. The hoisting apparatus was a necessary appliance. The master cannot escape responsibility, where it is his duty to supply suitable structures, instrumentalities, or appliances, by proving that he delegated to a proper agent their construction, superintendence, or repair. The agent Atkins, therefore, was not a fellow-servant. Holden v. Fitchburg R.R., 129 Mass. 268; Elmer v. Locke, 135 Mass. 575. What Atkins was employed to do was a question of fact, but the capacity in which he did it was inference of law. Johnson v. Boston Tow-boat Co., 135 Mass. 210. The court rightly ruled that he was acting as the master's representative.

OPINION

C. ALLEN, J.

It is not a universal rule of law that an implied duty rests upon an employer to furnish suitable means, machines, implements and instrumentalities for doing his work. This may depend on the nature of the employment, and the circumstances of the case. The natural inference from these might be that the servant or person employed was to furnish his own tools and appliances. Or the nature of the work to be done might be such that it would be natural and reasonable that the servant should procure whatever might prove to be needed, according to his own judgment, as a part of his employment. If a person is employed to do a piece of work himself, with the understanding that he shall procure such means, materials, or implements as he finds to be needed, and if he enters upon the execution of the work, and procures insufficient or defective means, materials, or implements, it might be found that the master did not assume any responsibility to such servant for their sufficiency or quality, even though he was to pay for them. Nor is the case necessarily different if the person so employed is authorized to engage others to help him do the work, as well as to procure means and appliances. If, for example, the work to be done should include the moving or raising of a heavy article, which could be done with the use of a simple fulcrum and lever, and the employer's foreman, in charge of the work, should be left to provide them at the place where the work was to be done, and he should take a common stone for a fulcrum, and a piece of scantling or a rail from a neighboring fence for a lever, and the stone should roll, or the lever break, and if the men engaged in the work should be hurt thereby, a jury would naturally find that such selection of materials and...