205 Pa. 253 | Pa. | 1903
Opinion by
The plaintiff was injured while in the service of the defendant and this action was brought to recover damages for his injuries, which he alleges were caused by the negligence of the defendant. Thomas H. Wright, the defendant, was a stevedore, and contracted with W. S. Taylor & Company to pile lumber for them on their wharf on Delaware avenue, in the city of Philadelphia. William S. Sharpley, the plaintiff, was employed by the defendant to assist in this work. In performing the work, the defendant’s employees used a derrick owned and erected by Taylor & Company on the wharf. The mast of the derrick was planted in the ground and cribbed with timber. The ratchet wheel of the derrick, used in hoisting the timber, was moved by a crank and, when supporting the timber, was held in place by a paul or dog whose grip of the wheel was made secure by a weight attached to it by means of a wire. The
The assignments of error raise but a single question and that is whether the defendant is responsible for the unsafe condition of the derrick. That the derrick was unsafe and that a previous inspection would have disclosed the fact are not controverted. The defendant, however, denies his liability for the injury received by the plaintiff “ because he had neither the control over the derrick which would have warranted an inspection, nor the power to make the repairs which might have been suggested by the inspection.”
The position of the defendant is untenable. His contract with Taylor & Company required him to pile the lumber on the wharf, and for that purpose he had to furnish the tools and appliances as well as the labor. The testimony shows that a derrick could be used advantageously in performing the work, and that without such an appliance the cost of piling the lumber would have been materially increased. The size of the timber required the use of a heavy derrick in handling it. Whether the defendant used the derrick constructed by Taylor & Company on the wharf, or brought another derrick to the wharf with which to perform his work, is immateral so far as it affects this case. The machine which injured the plaintiff was in the possession and control of the defendant while his employees used it in
We are unable to see the force of the suggestion of the counsel of defendant that his client’s control of the derrick did not warrant an inspection of it bj' him, nor invest him with the powers to make repairs. The owners did not deny him the privilege of doing either. The possession of the machine invested the defendant with the same authority and gave him the same opportunity to inspect it as it did to use it. The inspection involved no change in, nor injury to, the machine, unless in determining its strength it was broken, thus disclosing its weakness and unfitness for use. In that event there could be no complaint by the owners, as the defendant was performing a duty imposed by law, alike on him and the owners before they could use it. The permission to use the derrick, therefore, necessarily carried with it the permission as well as the duty to test it. It will not be presumed that the owners expected or desired the defendant, in the use of the machinery, to violate the law by failing to inspect it, or to use the machinery if it was unsafe or defective. Nor do we think it will be seriously contended that if an inspection had disclosed defects in the machinery, the defendant would not have had “ the power to make repairs ” before using it. His failure to have made the necessary repairs would have been a flagrant violation of his duty and would have made him responsible for any resultant injury to his employees. He could not with impunity knowingly furnish them with an unsafe machine.
It is further contended that Johnston v. Ott Brothers, 155 Pa. 17, and that line of cases rule this case against the plaintiff and compel him to seek redress for his injuries from Taylor & Company, the owners of the wharf and the derrick. We are not concerned here with the liability of Taylor & Company to answer for the injuries sustained by the plaintiff. If it be conceded that they are responsible to the plaintiff, it by no means follows that the defendant is not also guilty of culpable negligence for which he must respond in this action. His act in failing to have the derrick properly inspected clearly was an efficient cause of the accident resulting in the plaintiff’s injuries.
The assignments of error are overruled and the judgment is affirmed.