Rogers v. Ludlow Manuf'g Co.

• Decision Date: 23 March 1887
• Citation: 11 N.E. 77,144 Mass. 198
• Parties: ROGERS, per Pro. Ami, v. LUDLOW MANUF'G CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 198

11 N.E. 77

ROGERS, per Pro. Ami,

v.LUDLOW MANUF'G CO.

Supreme Judicial Court of Massachusetts, Hampden.

March 23, 1887.

Tort by an employe against the defendant corporation, the master, to recover damages for an injury received by the plaintiff while in said employ. The first count charged that the injury was caused by the failure of the defendant to provide suitable and safe machinery; the second, by the failure to give plaintiff suitable instructions and proper warnings of danger. At the trial in the superior court, before ROCKWELL, J., the jury found for the plaintiff, and the defendant alleged exceptions. The material facts appear in the opinion.

George M. Stearns, for defendant.

The defendant is not liable for injuries to employes caused by the negligence of fellow-servants in not making the ordinary repairs it is their duty to make, and in not keeping the machinery in daily running order, when proper means are provided therefor. McGee v. Boston Cordage Co., 139 Mass. 445, 1 N.E.Rep. 745; Johnson v. Boston Tow-boat Co., 135 Mass. 209;McDermott v. Boston, 133 Mass. 349;Jones v. Granite Mills, 126 Mass. 84;Smith v. Lowell Manuf'g Co., 124 Mass. 114. The master is only bound to instruct and warn those who from youth or inexperience may obviously need instructions and notice of peril. The master has a right to assume that the plaintiff knew how to do the work required by his employment, and to order him to do so without special warning or instruction. Williams v. Churchill, 137 Mass. 243;Yeaton v. Boston & L.R.R., 135 Mass. 418. The servant had “full and fair opportunity to become acquainted with the risks of his situation, and cannot complain if he is injured by such exposure. Rummell v. Dillworth, 2 Atl.Rep. 355. He knew and assumed the risk. Taylor v. Carew Manuf'g Co., 140 Mass. 150, 3 N.E.Rep. 21. The fifteenth request should have been granted. Boyle v. Mowry, 122 Mass. 251. See instructions by GARDNER, J., in Lawless v. Connecticut River R. Co., 136 Mass. 1. See, also, Tully v. Fitchburg R.R., 134 Mass. 499, 503.

G. Wells and J.B. Carroll, for plaintiff.

The testimony of Chormard as to a similar accident to himself upon this machine a short time previous to the accident to the plaintiff, was properly admitted. It was competent to show the existence of a similar defect to that claimed by the plaintiff, the length of time it had existed, and that the defendant by the exercise of reasonable care could have seen it. The defendant was not entitled to the first request asked. The third request asked is not a correct statement of law, and the defendant was not entitled to it as asked. A master has not necessarily fully performed his duty by providing suitable materials and competent servants. He may be guilty of negligence in not seeing that his servants perform their duties by keeping the machine in a safe condition. Gilman v. Eastern R. Corp., 10 Allen, 233, and 13 Allen, 433, 440;Ford v. Fitchburg R.R., 110 Mass. 240;Holden v. Fitchburg R.R., 129 Mass. 268, 273;Snow v. Housatonic R. Co., 8 Allen, 441. The modifications gave the defendant all it was entitled to ask upon this branch of the case. The request of the defendant was broader than the statement of the opinion of the court in McGee v. Boston Cordage Co., 139 Mass. 445, 1 N.E.Rep. 745, based on Johnson v. Boston Tow-boat Co., 135 Mass. 209. The fifth request asked for is covered by the first. The sixth and seventh prayers ask substantially the same thing, and the instructions of the court upon these were correct. O'Connor v. Adams, 120 Mass. 427. And see Keith v. New Haven & N.R.R., 140 Mass. 175, 3 N.E.Rep. 28. The eighth, ninth, and tenth requests were properly refused; the questions raised were for the jury. The defendant was not entitled to have the fifteenth request given in the form asked. It implied that, to entitle the plaintiff to recover, the agent or officer of the company must have known of the defect. It was enough if it appeared from the evidence that the defendant, by the use of reasonable care, should have known of it. Knowledge on the part of the overseer or foreman of the defendant would be evidence from which the jury might have found knowledge on the part of the corporation or negligence in not knowing.

FIELD, J.

As we construe the charge of the presiding judge, and as we think it must have been understood by the jury, we find nothing in the exceptions that requires comment except the refusal to give the third instruction requested, and the instructions given in place of it. That request was: “That the making of such ordinary repairs as the machine requires, and the keeping of it in order from day to day, may be intrusted to servants; and if the master employs competent servants for that purpose, and supplies them with suitable means, the master performs his duty.” This request was taken from the opinion in McGee v. Boston Cordage Co., 139 Mass. 445, 448, 1 N.E.Rep. 745, with a slight change. In that opinion it was said “that the making of such ordinary repairs as the use of the machine required to keep it in order from day to day may be intrusted to servants.” The request includes all ordinary repairs which the machine requires, as well as those required to keep it in order from day to day. Since the law was established in Farwell v. Boston & W.R. Corp., 4 Metc. 49, that a master is not liable for an injury to a servant caused by the negligence of a fellow-servant, because every servant takes, by virtue of his employment, the risk of such an injury, the question has been much discussed how far a master can escape responsibility by delegating the management of his business to servants. In that case it was said that “we are far from intending to say that there are no implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, the employer would be responsible to an engineer for a loss arising from a defective or ill-constructed steam-engine; whether this would depend upon an implied warranty of its goodness and sufficiency, or upon the fact of willful misconduct or gross negligence on the part of the employer if a natural person, or of the superintendent or immediate representative and managing agent in case of an incorporated company,-are questions on which we give no opinion.” Since that decision it has been established that it is the duty of the master to take reasonable care that suitable machinery be provided, that it be kept in proper repair, and that competent servants be employed and retained.

As a corporation must act by natural persons, and as all large corporations carry on their business by means of servants of different grades, it is manifest that if it is held that these are all fellow-servants, and that the corporation can delegate the whole duty of hiring and superintending its servants, and of providing its machinery, and of keeping it in repair, to one or more principal servants, such as superintendents or managers, the corporation may escape all responsibility for injuries caused by defective machinery, except in the few cases where it can be shown that these principal servants were incompetent, or that the directors of the corporation or its principal officers knew that the subordinate servants were incompetent, or that the machinery used was defective. To avoid this result some courts have held that superintendents or managers were not fellow-servants with the men employed to work under them, or that servants employed in one department of the business were not fellow-servants with those employed in another. Other courts have held that they were all fellow-servants, but that the master cannot avoid his obligation to see to it that reasonable care shall be exercised in procuring suitable machinery, in keeping it in repair, and in hiring and in retaining competent servants, by employing a servant to do these things for him; and that if he does employ a servant for this purpose, and the servant does not use due care, the master is responsible.

The tendency of the English courts, before the passage of the employers' liability act, (43 & 44 Vict. c. 42,) was to restrict very much the liability of the master. In Wilson v. Merry, L.R. 1 Sc. & Div. 326-332, it was said by Lord Chancellor CAIRNS that “what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select some proper and competent person to do so, and to furnish them with adequate materials and resources for the work. When he has done this, he has, in my opinion, done all that he is bound to do.” Such a rule makes the...