185 Mass. 496 | Mass. | 1904
The evidence would have warranted the jury in finding that by reason of the action of iron rust and salt water some portion of the fibre of the sling had become weakened, so that the sling was not strong enough to do the work expected of it and was therefore defective; that by the exercise of reasonable care this should have been known to those persons to whom the duty of the defendant as to providing safe and proper appliances had been intrusted; that as to this particular sling the plaintiff was not such a person; that it did not sufficiently appear that within the reasonable reach of the servants there were slings of the requisite strength which might have been used in this job; that the plaintiff believed, and had no reason to believe to the contrary, that the sling was strong enough to hold the pump ; that in trying to turn the pump as it came over towards the lighter of which he had charge he was in the performance of a duty; that he was reasonably careful in doing it; and that the accident was due to no negligence on his part, but solely to the breaking of the sling. Upon such findings, the jury might properly come to the conclusion that the plaintiff, while in the exercise of due care, was injured by the failure of the defendant to see that due care was exercised to provide safe and proper appliances for its workmen, and, inasmuch as the risk of a failure to perform this duty was not on the plaintiff, they could properly hold the defendant answerable for the consequences. See Graham v. Badger, 164 Mass. 42, 47; Moynihan v. Hills Co. 146 Mass. 586 ; Haskell v. Cape Ann Anchor Works, 178 Mass. 485, 486; Boucher v. Robeson Mills, 182 Mass. 500, 502.
The case differs materially from Kilroy v. Foss, 161 Mass. 138, upon which as to the question of due care of the plaintiff the defendant strongly relies. In that case the plaintiff was caring for the tag rope at the end of a derrick boom used to guide the descending load to its place on the ground, and had room to keep clear of the load as it was lowered on to the ground. The load consisted of stone to be used in erecting a building, and was
In the case at bar it was the plaintiff’s duty to place the pump on the deck of the lighter as it was hoisted over the side of the wharf and lowered on to the deck by men other than his crew. The jury were warranted in finding that neither the plaintiff nor any of his crew had anything to do with shackling on the sling, hoisting the pump or lowering it on to the deck. Their "duty was confined to placing it as it was lowered. One of his crew, George Y. Ashland, called as a witness by the defendant, was tending the forward guy on the pump as it was lowered away to the deck, and he was told by the plaintiff not to “ slack it too much.”
The pump had to be turned so as to be fore and aft with the lighter as it came over the side of the lighter, “ in order to lower the pump any more,” and the plaintiff was turning it when “ the sling broke, and he found himself underneath the pump.”
The plaintiff had to put his hands on the pump. He was not tending the tag rope of a derrick boom. The wharf gang had not hitched on a guy by which the plaintiff could turn the pump. He had to take hold of the pump. There is no direct evidence that he was under the pump farther than was necessary.
The pump was coming over the side of the wharf and was being lowered on to the deck. The plaintiff was on the deck. He was necessarily lower than the pump. It does not appear that he got unnecessarily under it. “ He found himself underneath it ” after it fell. It may be that he was on the after end of the pump, and that Ashland had been keeping the forward guy taut and so had been keeping the pump from swinging forward, and that he slacked up and it swung aft over the plaintiff and fell on him. In the opinion of the majority of the court the questions of the due care of the plaintiff and the negligence of the defendant were properly left to the jury.
No error in law was committed in the admission of the questions put to the expert Miles and of the answers thereto.
Exceptions overruled.