| Mass. | May 24, 1918
It is not contended that as matter of law the plaintiff was careless or assumed the risk, and the only question is whether there was any evidence of the defendant’s negligence. The jury were warranted in finding that while the plaintiff was at work piling “sawed hard pine timber” of different lengths by means of a steam engine, a derrick and a pair of tongs which were
It also was uncontradicted that, when in operation, the tongs did not sink into or “bite” the timber, but worked “like a clamp.” An expert called by the plaintiff testified not only that the tongs were unsuitable for hoisting such timbers because made and intended for use in handling round logs, and that the only safe tongs were chain tongs which “could easily be had in the open market.” If this evidence was believed, the duty of the defendant to provide reasonably safe tools or appliances with which the plaintiff was to perform his work had not been discharged.
But, the defendant having introduced evidence from which the jury in answer to special questions found that the tongs supplied were in common use for the purpose for which the defendant furnished them and were commonly used by contractors and builders in such work, the presiding judge, notwithstanding a general verdict for the plaintiff, ruled that the action could not be maintained.
The ruling was wrong. The defendant undoubtedly was not required to provide for the use of his employees the latest or safest appliances, even if in the opinion of competent mechanical experts such appliances would have been more suitable or less dangerous. Sullivan v. India Manuf. Co. 113 Mass. 396" court="Mass." date_filed="1873-11-15" href="https://app.midpage.ai/document/sullivan-v-india-manufacturing-co-6417440?utm_source=webapp" opinion_id="6417440">113 Mass. 396. Wolfe v. New Bedford Cordage Co. 189 Mass. 591" court="Mass." date_filed="1905-12-04" href="https://app.midpage.ai/document/wolfe-v-new-bedford-cordage-co-6429156?utm_source=webapp" opinion_id="6429156">189 Mass. 591. But the jury on conflicting evidence were to say whether the tongs were made for or properly adapted to the use to which they were put, and this essential element is lacking in the questions submitted. The facts, that other employers furnished similar appliances for use in similar work and that the tongs were purchased from a reputable maker do not as matter of law relieve the defendant, if the appliance furnished, although perfect in mechanism, is found to be unsuitable and unsafe, which condition the defendant knew or in the exercise of reasonable diligence should have known. Myers v. Hudson Iron Co. 150 Mass. 125" court="Mass." date_filed="1889-11-26" href="https://app.midpage.ai/document/myers-v-hudson-iron-co-6423242?utm_source=webapp" opinion_id="6423242">150 Mass. 125, 138. Geloneck v. Dean Steam Pump Co. 165 Mass. 202" court="Mass." date_filed="1896-02-25" href="https://app.midpage.ai/document/geloneck-v-dean-steam-pump-co-6425486?utm_source=webapp" opinion_id="6425486">165 Mass. 202, 217. Slattery v. Walker & Pratt Manuf. Co. 179 Mass. 307" court="Mass." date_filed="1901-06-18" href="https://app.midpage.ai/document/slattery-v-pratt-manufacturing-co-6427531?utm_source=webapp" opinion_id="6427531">179 Mass. 307, 312. See also Feeney v. York Manuf. Co. 189 Mass. 336. As said by Colt, J., in Hill v. Winsor, 118 Mass. 251" court="Mass." date_filed="1875-09-04" href="https://app.midpage.ai/document/hill-v-winsor-6418178?utm_source=webapp" opinion_id="6418178">118 Mass. 251, 259, “there is no rule of law which exempts one from the consequences of his negligent conduct upon proof that he proceeded in the usual man
By the" terms of the report the plaintiff is to have judgment for the amount stipulated.
So ordered.