197 Mass. 391 | Mass. | 1908
In this case the jury would have been warranted in finding that the accident here complained of was caused by one of the sprockets becoming worn so that it was hooked; that where a sprocket is hooked, the chain, when it passes around the wheel on the sprockets, in place’of leaving the sprocket as it should do, is held by the hook of the sprocket and the link so held receives the full power of the engine and breaks with great force. The jury would have been warranted in finding also that the duty of inspecting and caring for the safety of the cutting machine in question was entrusted to Yan Norman, and that Yan Norman was negligent in not discovering the hook in the sprocket and causing the necessary repairs to be made.
There was no pretence here that the defendant had been negligent in selecting Yan Norman, to whom the care of the machine was delegated.
The case therefore is one in which, had the plaintiff’s intestate not been killed, there would have been a remedy both at common law and (apart from § 79) under R. L. c. 106, § 71, cl. 1. Ryalls v. Mechanics Mills, 150 Mass. 190. Lynch v. M. T. Stevens Co. 187 Mass. 397.
The plaintiff’s argument in support of her contention that the case at bar falls within the first clause is that at common law the negligence of one to whom is delegated the duty of maintaining in a safe condition the machinery used by his employers is by
In the accurate use of words the negligence of a third person for which a defendant is liable is not the negligence of the defendant. And this is intensified by the wording of § 73, namely, “the negligence of an employer himself.”
Further it is manifest that the class described in the second clause of § 73 is a class in contradistinction to those described in the first clause, and since the case at bar plainly falls within the second, it does not prima facie at least fall within the first.
But the plaintiff’s intestate was killed, and the only statute which makes the defendant liable for his death is R. L. c. 106, § 73.
Had the plaintiff’s intestate not been a farm laborer the case made out would have been a case where his death was the result of the negligence of a person for whose negligence the defendant is made liable by force of R. L. c. 106, § 71, cl. 1, and so within the second clause in R. L. c. 106, § 73.
We are of opinion however that although a foreman the plaintiff’s intestate was a farm laborer within R. L. c. 106, § 79, and by force of that section the defendant is not liable under the second clause of § 73.
The plaintiff’s contention is that the case made out by her is within the class described in the first clause of § 73 as well as within the second clause of that section.
It recently has been decided by this court in construing a similar statute imposing a penalty for wrongfully causing the death of another, (St. 1886, c. 140, now R. L. c. 111, § 267,) that words are to be taken in their ordinary meaning and not in that given to them as matter of legal intendment. Where a plaintiff while helpless is injured by the negligence of another he can recover because the injury is not caused by an act of contributory negligence on his part. It is commonly said that the allegation that he was in the exercise of due care is proved in such a case as matter of legal intendment. See Black v. New York, New Haven, & Hartford Railroad, 193 Mass. 448. In spite of that it was held by this court that a man who is killed while helpless through the gross negligence of the defendant’s servants
The decisive answer to the plaintiff’s contention however is that if he is right § 73 makes the employer liable if death results from any negligence for which he is liable, whether his own or that of another and whether he is liable under the statute or at common law. If that had been the intention of the Legislature the liability would not have been restricted to cases where death is the result of the negligence of an employer himself or of a person for whose negligence an employer is liable under the provisions of § 71.
Exceptions overruled.
