90 Me. 110 | Me. | 1897
Defendants operated a granite quarry at Long Cove. They were shipping granite paving blocks by a schooner lying at a wharf. The mode of loading the blocks on board was over a run or platform, sixteen to eighteen feet long, one end rest
The defendants made six requests of the presiding judge for instructions, which were not given in terms, and have taken twenty-two exceptions to the charge consisting of detached extracts therefrom. The whole charge is reported as part of the exceptions.
The duty of a master to his servant, in furnishing machinery or appliances for the work, has been repeatedly stated by this court. In Buzzell v. Laconia Company, 48 Maine, 116, it is said “it is the duty of every employer to use all reasonable precautions for the safety of those in his service. He should provide them with suitable machinery, and see that it is kept in a condition which shall not endanger the safety of the employed. If the employer knowingly makes use of defective and unsafe machinery, when an injury is done to a servant ignorant of its conditions, and in the exercise of ordinary care, he should compensate the person thus injured.” .... “The superior intelligence and determining will of the master demand vigilance on his part, that his servants shall neither wantonly nor negligently be exposed to needless and unnecessary peril.” .... “The same reasoning which shows that the machinery and other instruments of labor should be safe, would demand that the'bridges used in passing from one part of the premises to another, or the ladders used in ascending to or descending from labor, and that the passage Avays in the premises of the employer and within the precincts of the place where the labor is to be done should be safeumd convenient.” In Dixon v. Rankin, 14 Court of Session Cases, 420, cited with approval by this court, in same case, supra, it is said “the master of men in dangerous occupations is bound to provide for their safety. This obligation extends to furnishing good and sufficient apparatus and keeping the same in good condition.” And in Hull v. Hall, 78 Maine, 118, the court said, “to render the master liable, it must
And in Shanny v. Androscoggin Mills, 66 Maine, 425, it is said that “ the employer provides the means of carrying on the business : and as a matter of course he assumes the responsibility that his work shall be done with due care; and, as the responsibility continues so long as the means are used, so must the same care be exercised in keeping the required means in the same safe condition as at first.”
In a late case in New Jersey, Comben v. Belleville Stone Co. of New Jersey, (N. J. 1897,) reported in the Atlantic Reporter, Vol. 36, p. 473, after stating the general principle, the court says “the master is responsible for the negligence of any agent whom he may select to perform this duty for him if the agent fails to exercise reasonable care and skill in its performance.” See also Chicago M. & St. P. R. Co. v. Ross, 112 U. S. 390.
And 'in cases like Kelley v. Norcross, 121 Mass. 508, where it was held that if “the master does not undertake the duty of furnishing or adapting the appliances by which the work is to be performed, but this duty is intrusted to or assumed by the workmen themselves, within the scope of their employment, he is exempt from responsibility, if suitable materials are furnished and suitable workmen are employed by him, even if they negligently do that which they then undertake.” The exemption fails if “suitable workmen” are not employed. Here, common laborers, engaged in stowing stone posts in the schooner, were charged with the duty of securing the platform, and allowed to select the gear, without instruction, and there is no evidence that they possessed the requisite skill, intelligence or care, a fact to be shown by the defendants, if they would escape responsibility. The law will not allow an employer, whose duty it is to provide reasonably safe appliances, to escape liability, by employing incompetent or unsuitable persons to discharge it. But in the case last cited the court say, “ the servant is not required to take the risks of the careless
This question was submitted to the jury under suitable instructions and they found that the rigging of the platform and selection of gear was within the duty of the master and not within"that of the servants, in their capacity as servants.
Upon this finding of fact, it was the duty of defendants to use reasonable diligence to furnish a safe platform with safe appliances for its support. They, through their vice-principal Smith, selected the men to do this work, men not shown to be suitable, and from their own testimony as to the faulty appearance of the rope which broke, observed by them when they applied it, evidently unsuitable men to be intrusted with it. There was, therefore, both negligence in the selection of agents and also in the failure to inspect the gear to be used.
It is claimed that the rigging of the platform was ordinarily done by the fellow-servants of the plaintiff-. If that be true, the duty to furnish safe appliances resting upon defendants, it will not relieve them from liability. ^ They must discharge their duty in the premises. Negligence, however often repeated, will not ripen into an excuse for a neglect from which injury results.
An application of these principles shows that all the requested instructions were properly refused.
To judge of the instructions excepted to, the whole charge must be examined.
James M. Smith stated fully his duties and authority at Long Cove, under his employment by the defendants. It was a question of law, whether he occupied, as to the plaintiff, the position of vice-principal, or was a fellow-servant with plaintiff. The court instructed the jury that he was a vice-principal, and stood in place of the defendants, and his acts or omissions were those of the principal. There can be no doubt that upon the evidence in the case this instruction was correct. The argument of defendants that the question was submitted to the jury is not well taken; but if it was submitted to them, the defendants cannot complain, as the jury decided it correctly. Tire important question, whether the electing and support of the run, including the selection of the gear, was within the duty of the principal, or that of the workmen, as a part of their work as servants or workmen, was suitably presented to the jury, coupled with the correct rule of law, that in the former case, any negligence would be that of defendants, and in the latter it would be that of a fellow-servant, for which the principal would not be responsible. This instruction was as favorable to defendants as could be required. Arkerson v. Dennison, 117 Mass. 412.
We have carefully examined the charge and find that it presented the legal questions involved, clearly and appropriately and fully preserved all the rights of the defendants. The exceptions must be overruled.
Upon the Motion: The jury found that the duty of placing and securing the run, including the selection of suitable gear, rested upon the defendants, and was not within the ordinary duty of the
. That the rope which broke was insufficient, is undoubted. Res ipsa loquitur. That it appeared to be old, weather-beaten, and of doubtful strength, was seen by Peter Smith, one of the men who helped rig the run. He says : “ I see the rope was kind of poor and so I took a piece of warp and went up and made it so safe that it was safe for anybody to' go up. They appeared to be old, old rope, or part of it.” After it broke he examined it, and he says: “I should think by the looks of it the rope had been poor. I didn’t open the rope to see, but I should judge it was poor.” Jones, a witness for defendants, says he untwisted the rope, and “it was weather beaten some,” did not look new. Dwyer, another of defendants’ witnesses, says he examined the rope after the accident and “ found the rope looking very weather beaten on the outside. I unlaid it and found it was all bright inside.” “ Probably two-thirds of the rope was good rope.” He says he should judge “ it would hold up a ton easy enough.” He says the run and car and load of paving “ didn’t weigh over two tons ” in his opinion. He also says: “ When a car has got a hundred paving in it, it is pretty heavy and running it out on the end of the stage, brings a heavy strain on the tackle of course, and when it is dumped it rises about, well six or eight inches, -that of course would cause a chafing in the upper block.” He also says that the rope would not chafe if the block was in good running order. It is apparent that to sustain such a strain as was put upon this tackle, required the use of thoroughly sound rope of sufficient size, and it cannot be doubted that a reasonably careful examination of this rope, before
We are satisfied with the finding that the defendants’ duty required them to use reasonable care in the erection and maintenance of the run and the selection of suitable gear for that purpose, and that this duty was not properly discharged by them; and for the consequences of this neglect, they are legally responsible to the plaintiff.
While the damages are large, we cannot say that they are so excessive as to requh'e us to disturb the verdict. At the plaintiff’s age, entire recovery cannot be as certainly predicated as it might be in a younger person. His pain and suffering, which was an element of damage, it is difficult to compensate for in money by any definite rule of computation. Much is left to the good judgment of the jury. There is a conflict in the testimony as to the extent of plaintiff’s recovery and his ability to labor. The jury saw and heard the witnesses and were in a better position to determine the exact facts than the court can be; and we are reluctant to disturb a verdict upon this question unless it very clearly appears to be excessive upon any view of the facts which the jury were authorized to adopt. Such is not the case here and the entry must be,
Motions and exceptions overruled.