Trimble v. Whitin MaCh. Works

• Decision Date: 21 October 1898
• Parties: TRIMBLE v. WHITIN MACH. WORKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 150

51 N.E. 463

TRIMBLE v. WHITIN MACH. WORKS.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1898

COUNSEL

Sheehan & Cutting, for plaintiff.

W.S.B. Hopkins and F.B. Smith, for defendant.

OPINION

MORTON, J.

We understand that the only defect complained of was the want of a gang plank at the side door of a car, while the plaintiff was helping to load the machine. If we assume, without deciding, that a gang plank was a part of the ways, works, and machinery, there is nothing to show that the defendant had not furnished a suitable gang plank. If the defendant furnished a suitable gang plank, it was not bound to see that it was properly placed at the door while the men were putting the machine into the car. It would have performed its duty in furnishing the gang plank. Robinson v. Manufacturing Co., 143 Mass. 528, 10 N.E. 314; Ashley v. Hart, 147 Mass. 573, 18 N.E. 416; Thyng v. Railroad Co., 156 Mass. 13, 30 N.E. 169; Carroll v. Telegraph Co., 160 Mass. 152, 35 N.E. 456; Allen v. Iron Co., 160 Mass. 557, 36 N.E. 581. Under the circumstances indicated, the putting of the gang plank in place was the work of the men themselves, or it belonged to some superintendent or foreman of the defendant to see to it. If it was the former, then it is clear that the defendant is not liable to the plaintiff for an injury occurring through the failure or neglect of the plaintiff or his fellow workmen to do something which he or they ought to have done. Nobody is referred to in the exceptions as superintendent, and the only person who is referred to in them as a foreman is Mr. Cram. But there is nothing to show whether his sole or principal duty was that of superintendence, or whether it was a part of his duty to see that the gang plank was in place at the side door of the car while the men were loading the machine. It does not even clearly appear that he was a foreman of the defendant, though perhaps that might be fairly presumed. Therefore, even though we make in the plaintiff's favor the assumption which we have made, he fails on this branch of the case. The result is that the exceptions must be overruled. So ordered.