Cooper v. Hamilton Manufacturing Co. , 96 Mass. 193 ( 1867 )

Bigelow, C. J.

We feel constrained to set aside this verdict, not because the case was one which ought not to have been submitted to the determination of the jury, but because the defendants were precluded by the ruling of the court from submitting to their consideration a ground of defence which ought to have been left open to them. It appears by the exceptions that, after the evidence in support of the plaintiff’s case was put in, the court made the peremptory ruling that the principle of law that an employee could not maintain an action against his employer if he was injured by the negligence of others in the service of the same employer, when he was acting in the discharge of his duty and all were acting in a common service, would not be applicable to the case. The effect of this decision, at the stage of the case at which it was announced, was to shut out the defendants from offering any evidence to sustain a defence based on the rule of law referred to. This we think was erroneous. No doubt the defendants were bound to provide suitable structures for carrying on all the operations necessary to the transaction of the business or performing the work in which the persons employed by them were engaged. As applied to the case at bar, this principle of law would require of them to use proper care in order to see that the floors were of sufficient strength to support any machine which it was necessary to move over or upon them. But the nature of this care which they were bound to use was such that the defendants might have performed their full legal duty by employing suitable persons of competent skill and experience, whose business it was to keep the floors in such condition as to repairs that they were fit and. safe for use for any of the purposes for which it might become necessary to appropriate them. If they were diligent and careful to this extent, and any want of repair had not existed for so long a time as to show absolute negligence on the part of the defendants, then the accident would have been attributable to the negligence of an agent or servant in the service of a common employer with the plaintiff, and the case would have come within the principle which the court, without hearing the evidence in behalf of the defendants, decided was inapplicable to the case. Snow v. Housatonic Railroad, 8 Allen, 411. Gilman v. Eastern Railroad, 13 Allen, 433, 441. It seems to us that the defendants should have been allowed to go into this ground of defence, and, after introducing evidence in its support, to ask the consideration of the jury to the question, whether the injury to the plaintiff did not occur by reason of the negligence of a fellow-servant for which they were not legally responsible.

We are also strongly inclined to the opinion that there was evidence in the case that the accident happened in consequence of the careless mismanagement of some of the persons who were engaged with the plaintiff in moving the machine from the repair shop into the bleach-house; that is, that it was caused by the carelessness of some of the workmen in letting go their hold of the machine immediately after it had passed through the door of- the bleach-house, instead of retaining their hold upon it, as did the plaintiff, so as to prevent it from passing too rapidly over the floor, and thereby causing too sudden a pressure upon it.

The effect cf She ruling of the court was to exclude the defendants this ground of defence.

Exceptions sustained.