135 Mass. 398 | Mass. | 1883
The questions to be determined in this case are not whether the instructions to the jury were correct statements of general rules of law in regard to the liability of a master to his servant, or in regard to the circumstances under which a servant who is injured will be debarred from a recovery of damages by reason of his previous knowledge of the risk he was running; but whether, upon the evidence as it stood, the defendant was entitled to have the case withdrawn from the jury altogether, by a ruling that the plaintiff could not maintain the action upon either of the two grounds stated; namely, that there was no evidence of any relation between the plaintiff and the defendant which could render the defendant liable to the plaintiff for the condition of the winch, whatever it might be; and that the plaintiff knew or ought to have known what the condition of the winch was, and therefore must be held to have assumed the risk of using it in that condition. We are of opinion that the defendant was entitled to the ruling which he asked for, upon both grounds.
1. It was necessary for the plaintiff to introduce evidence sufficient to warrant the jury in finding that he was the defendant’s servant, and this he undertook to do by showing that he was employed by the stevedore, Turner, and by seeking to raise an inference that Turner was employed by the defendant as his servant, and that the defendant undertook to furnish to Turner winches for the discharge of the cargo. But there was nothing to show that Turner was acting otherwise, in discharging the cargo, than in the ordinary relation of a stevedore to the owner, which is not that of a servant, but of an independent contractor, not under the immediate supervision and control of an employer. Linton v. Smith, 8 Gray, 147. There was nothing to show the terms of any contract between the defendant and Turner, and the judge properly remarked to the jury, that it was not for them or for him to guess what it was. There was no presumption that Turner was acting as a servant of the defendant, or that the defendant undertook to furnish a suitable winch to be used in unloading the ship; and there was no evidence which would warrant the jury in assuming or inferring either of those
2. Moreover, it sufficiently appeared that the plaintiff had such knowledge of the character and condition of the winch, and the danger of using it, as to prevent a recovery of damages against the defendant. By his own testimony, he was a machinist by trade; he was well acquainted with such winches, and in the habit of using them; he had used this particular winch before; he saw, before beginning to use it on the occasion in question, that it was a jack-winch, and knew that jack-winches, to use his own expression, were “ old rattle-traps,” and that this winch was “ an old rattle-trap; ” he saw that the guard was gone from over the gearing, and thought he would look to see what else was not right about it; he used more than usual care in running the winch, seeing that the guard was gone, in order to avoid the danger of getting his clothes or his person caught in the unprotected gearing; the defect which caused the danger was obvious, and directly before his eyes; and nevertheless, after using the winch for several hours, he in a moment of inadvertence received an injury from the very source of danger to which he had already seen that he was exposed, and against which he endeavored to guard by the use of more than usual care. Elaboration of statement or discussion could hardly add to the significance of these simple facts. The rule is well settled, and is illustrated by numerous cases cited for the defendant;
The defendant cited, on this point, Huddleston v. Lowell Machine Shop, 106 Mass. 282, 286; Sullivan v. India Manuf. Co. 113 Mass. 396; Ladd v. New Bedford Railroad, 119 Mass. 412; Lovejoy v. Boston & Lowell
