173 Mass. 400 | Mass. | 1899
This is an action under the statute for personal injuries alleged to have been caused by a defect in the defend
In the first place, we think it entirely plain that the conditions of which the plaintiff complains do not belong to that transitory class for which the employer is not responsible beyond furnishing a choice of proper materials or instrumentalities to the plaintiff or her fellow servants. To put it at the lowest, the jury were warranted in finding, as it was left to them to find, that this was one of those permanent arrangements as to which the duty of the employer could not be delegated, according to the well known common law distinction, or, under the statute, that, if there was a defect, it was a defect in the ways, works, and machinery. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. It does not matter that the shafting had been up only for a day. The defendants’ liability was the same that it would have been a month later.
In the next place, we are not prepared to say that the jury were not warranted in finding that the defect which was shown to exist by the fall of the shafting presumably was due to the negligence of those who had charge of it. If the jury thought that such things generally can be prevented by reasonable care, — that as a rule they do not happen from latent defects but rather because some one has been careless in failing to attach
The jury were instructed that there could be no recovery for negligence on the part of the superintendent Shea. The defendants argue that the words of the statute, “ owing to the negligence of the employer,” mean the employer’s personal negligence, (Toomey v. Donovan, 158 Mass. 232, 236,) and that the alternative words, “ or of any person . . . intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition,” St. 1887, c. 270, § 1, cl. 1, apply only to Shea and do not apply to Maclaren. We do not follow the argument. Shea had the wider authority, no doubt, but was a salesman, and the man who really understood the machinery and looked after it, although subject to orders, was Maclaren. The jury were warranted in finding that he was a person intrusted within the meaning of the statute. We do not perceive any error in the instructions given or refused as to the principles of liability which can have done the defendants any harm.
The plaintiff’s mother properly was allowed to testify as to what was a fair charge for her services to the plaintiff. Kendall v. May, 10 Allen, 59, 67. Nickerson v. Spindell, 164 Mass. 25, 28.
Exceptions overruled.