158 Mass. 232 | Mass. | 1893
The plaintiff contends that there was- evidence tending to show that the defendants were liable at common law, and also under § 4 of the employer’s liability act, St. of 1887, c. 270.
The defendants concede that the jury would have been warranted in finding that _the plaintiff was in the exercise of due care, and that the machine was out of repair; but they insist that at common law there was no evidence tending to show that they were under any obligation to keep the machine in repair, or that thejr owed any duty to the plaintiff in that regard, and that under § 4 of the employers’ liability act there was no evidence to show that its condition was due to their negligence, or that of any person intrusted by them with the duty of seeing that it was kept in repair.
Their contention at common law implies, and we think rightly, that, if they were bound to keep the machine in repair, the defect was of a sort to render them liable to the plaintiff, if they owed any duty to him to keep the machine in repair.
The defendants did not hire the plaintiff, and, we assume, had no authority to discharge him. He was at work in a room in
Toomey testified that it was his duty to look after the machines and have them repaired, and that he was the person who was to look out for defects; but he was not sure that
It manifestly would have been competent, on this testimony, for the jury to find that the defendants were bound to keep the machines in repair; that Toomey, in what he did as to repairs, was acting for them ; and that, under the arrangement between him and them, they contemplated that the machines would be operated by workmen employed by him. Under such circumstances, the defendants would owe to those employed on the machines the duty of exercising reasonable care to keep them in such a condition that they could be operated safely. If they engaged with Toomey to keep them in repair for use by his workmen, they would be liable to any one employed upon them by him who, being himself in the exercise of due care, was injured in consequence of their neglect to repair them. The liability of the defendants to the plaintiff would not depend on or arise out of any contract with him, but on their neglect of a duty which they had undertaken towards him in common with the other workmen employed by Toomey. It is not necessary to consider whether there would be any ground for holding the defendants liable if they had merely furnished the machines, and if there was no evidence that would warrant a jury in finding that they contemplated the use of them by workmen employed by Toomey, and had agreed to keep them in repair. It maybe that Toomey also would be liable to the plaintiff; but neither that fact, nor the fact that Toomey might be liable to the defendants for breach of his agreement (if he did agree) to notify them when the machines needed repairing, would relieve the defendants from liability to the plaintiff for injury resulting to him from neglect by them of a duty which they owed to him. Curley v. Harris, 11 Allen, 112. Kimball v. Cushman, 103 Mass. 194. Gray v. Boston Gas Light Co. 114 Mass. 149. Hayes v. Philadelphia & Reading Coal & Iron Co. 150 Mass. 457. Bickford v. Richards, 154 Mass. 163. Heaven v. Pender, 11 Q. B. D. 503. Elliott v. Hall, 15 Q. B. D. 315. Smith v. London & St. Katharine Docks Co. L. R. 3 C. P. 326. We think, therefore, that the plaintiff should have been allowed to go to the jury on the common law
The purpose of that section evidently was to enlarge the liability of the employer; otherwise, it is meaningless. The inference from the section plainly is that the employer should be liable when a contractor does part of his work and an employee of the contractor is injured by reason of a defect in the condition of the ways, works, machinery, or plant furnished by the employer to the contractor, which has not been discovered or remedied through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition. If, therefore, there was a relation of employer and contractor, as appears to have been the case between the defendants and Toomey, as to any part of the farmer’s work, and the plaintiff was injured by reason of a defect in any of the machinery furnished by them to Toomey for such work which arose from, or had not been discovered or remedied through, their negligence or that of some one intrusted by them with the duty of seeing that it was in proper condition, then the defendants would be liable. By the negligence of the employer, we understand to be intended his own negligence, in distinction from that of his servant or superintendent, which is included in the latter part of the same sentence in which the negligence of the employee is spoken of. There was evidence that the defendants were bound to keep the machine in repair, and that they had the right and opportunity to inspect it, and were frequently in the room where it was. Whether the want of repair was due in any respect to their own negligence was, we think, under the circumstances, a question for the jury. We cannot say that a jury would not be justified in finding that they should have examined the machine themselves, in the exercise of reasonable care. It has already appeared that there was evidence which would have warranted the jury in finding that Toomey was intrusted by the defendants with the duty of seeing that the machine was in proper condition. The fact that he also occupied towards them the relation of a contractor would not relieve the defendants from liability for his negligence in seeing that the machine was in proper condition.
One person may sustain different relations to another, as well as different relations to different persons. Whether the want„of repair was due to any negligence on the part of Toomey was also, we think, a question for the jury, and the plaintiff should have been allowed to go to the jury on the question of the liability of the defendants under § 4 of the employers’ liability act.
The remaining question relates to the admissibility of certain testimony offered by the plaintiff, tending to show that for a long time prior to the accident automatic guards had been in use upon such machines, for the purpose of preventing the head block from coming down in case there was any defect in the machine, and that the defendants knew of such guards, and the plaintiff did not know of them. This testimony was excluded by the court, and we think rightly. For a part of three years prior to the accident, the plaintiff had worked upon a machine like that upon which he was injured. He was twenty-five years old at the time of the accident, and, for aught that appears, was of ordinary intelligence. He knew that there was no guard on the machine, and no way of preventing the head from coming down if the machine was out of order. The fact that there was no guard was an obvious one; and, in working on the machine, he must be held to have assumed the risk resulting from the absence of a guard. Whether he did or did not know that automatic guards were in use on such machines was immaterial. He agreed to work on the machine as it was, and the defendants owed no duty to him to put on the guard. Having assumed the risk of operating the machine without a guard, the plaintiff cannot now claim that one should have been put on. Pingree v. Leyland, 135 Mass. 398. Moulton v. Gage, 138 Mass. 390.
Exceptions sustained.