Robinson v. George F. Blake Manufacturing Co., 143 Mass. 528

Robinson v. George F. Blake Manufacturing Co.

143 Mass. 528 | Mass. | 1887

0. Allen, J.

It is not a universal rule of law that an implied duty rests upon an employer to furnish suitable means, machines, implements, and instrumentalities for doing his work. This may depend on the nature of the employment and the circumstances of the case. The natural inference from these might be that the servant or person employed was to furnish his own tools and appliances. Or the nature of the work to be done might be such that it would be natural and reasonable to infer that both parties understood that the servant should *533procure whatever might prove to. be needed, according to his own judgment, as a part of his employment. If a person is employed to do a piece of work himself, with the understanding that he shall procure such means, materials, or implements as he finds to be needed, and if he enters upon the execution of the work and procures insufficient or defective means, materials, or implements, it might be found that the master did not assume any responsibility to such servant for their sufficiency or quality, even though he was to pay for them. Nor is the case necessarily different, if the person so employed is authorized to engage others to help him do the work, as well as to procure means and appliances. If, for example, the work to be done should include the moving or raising of a heavy article, which could be done with the use of a simple fulcrum and lever, and the employer’s foreman, in charge of the work, should be left to provide them at the place where the work was to be done, and he should take a common stone for the fulcrum and a piece of scantling or a rail from a neighboring fence for the lever, and the stone should roll, or the lever break, and one of the men engaged in the work should be hurt thereby, a jury would naturally find that such selection of materials and appliances was a part of the work to be done, and not within the implied duty and undertaking of the employer.

In the case at bar, this aspect was not presented to the jury. The question was, whether, under the circumstances disclosed, and in view of the nature of the work to be done, the place of its execution, and the character of the means and appliances required to aid the workmen, it was the implied duty of the defendant to furnish such means and appliances; whether, in the absence of any express contract upon the subject, this duty, according to the understanding of the parties, rested upon the defendant, or upon those who should undertake to do the work. According to the instructions given, this duty was assumed to rest upon the defendant. But it might well be found that the parties did not understand that the defendant was to be responsible for the selection of the blocking or other means to be used in raising the condensers. If the bill of exceptions contains all the facts necessary to be taken into consideration, the more natural inference is, that the plaintiff did not rely upon the *534defendant, or upon Atkins as representing the defendant, to furnish suitable means and appliances, but rather that, by mutual understanding, this was a matter left to be done in the execution of the work, and as a part of it. From the circumstances proved, the law does not imply an undertaking on the part of the defendant to be responsible for the sufficiency and safety of the means and materials to be employed. These circumstances are at most but evidence, from which, taken in connection with other facts, such undertaking might be inferred by the jury. And, in the absence of any express contract or implied undertaking, of course negligence is not imputable to the defendant. Clark v. Soule, 137 Mass. 380. Holden v. Fitchburg Railroad, 129 Mass. 268, 274. Harkins v. Standard Sugar Refinery, 122 Mass. 400.

There is another consideration that ought to be mentioned. In order to recover, the plaintiff must show not only that it was the defendant’s duty to furnish proper materials, but that it failed in that duty. There was no evidence that anything broke, or that the materials were defective. The mistake seems to have been in supposing that the blocking would not slip, and that it needed nothing to keep it in place. There was no evidence to show that the means of fastening it could not readily have been had, if it had been thought necessary to use such means. The plaintiff offered evidence that, with the articles actually used in constructing the hoisting arrangement, and no more, it could not be made safe for the work to be done. This does not imply that means of making it more secure were wanting ; and we fear that the verdict may have been returned for the plaintiff merely because the jury thought that there was an error in judgment in putting one block on top of another without, fastening them together, and that thus an unsuitable hoisting arrangement was provided by Atkins. See Floyd v. Sugden, 134 Mass. 563 Zeigler v. Day, 123 Mass. 152.

Exceptions sustained.