Myers v. Hudson Iron Co. , 1889 Mass. LEXIS 34 ( 1889 )

C. Allen, J.

The several plaintiffs, who were underground laborers in the defendant’s mine, were undertaking to descend into the mine through a perpendicular shaft by means of a bucket, as they had been in the habit of doing. The bucket was supported by a wire rope or cable, which wound around a drum, and it was usually controlled in its descent by means of a shoe-brake which pressed upon the rim of the drum. This shoe-brake was operated by the defendant’s assistant engineer, by means of a lever. On the occasion of the accident, the plaintiffs had all entered the bucket, and, upon word being given, the assistant engineer started to let down the bucket, and after it had descended a few feet he found the brake was not holding, and the bucket fell rapidly for about one hundred and twenty-five feet, when it was suddenly stopped by landing-planks across the shaft, and the plaintiffs were hurt. At the trial, much evidence was introduced by the plaintiffs and by the defendant, at the conclusion of all of which the defendant requested the court to instruct the jury to return verdicts in its favor ; but the court declined to do so, and submitted the cases to the jury, who returned verdicts for the several plaintiffs. There was no request for any special instruction as to the rules of law applicable to the cases, and no exception was taken to the instructions which were actually given to the jury; but the defendant’s complaint is, that the whole evidence was insufficient to warrant the verdicts for the plaintiffs.

One ground upon which the defendant has relied in the argument before us has been, that, upon the facts disclosed, the plaintiffs must be held to have assumed the risk of the safety of the machinery. There are many cases in which plaintiffs have for this reason been held to be debarred from recovering damages for injuries. But in the present case we do not find undisputed facts sufficient to make such a course proper. The risk of the safety of machinery is not assumed by an employee, unless he knows the danger, or unless it is so obvious that he will be presumed to know it. He takes the risk of known or obvious dangers, and not of others. Scanlon v. Boston Albany Railroad, 147 Mass. 484, 487. Ferren v. Old Colony Railroad, 143 Mass. 197. Linch v. Sagamore Manuf. Co. 143 Mass. 206. Ford v. Fitchburg Railroad, 110 Mass. 240, 259. It was no part of the plaintiffs’ duty to operate the machinery for lowering the bucket. . Their work was under ground. We cannot say that the risk was so obvious that they must be held to have assumed it. The defendant even now strongly resists the inference that the machinery was in fact dangerous or unsuitable for use, and argues that the evidence conclusively shows the contrary. The plaintiffs might well rely somewhat upon the expectation that the defendant would provide proper machinery for lowering them to their work, and they were not called upon to be over strict in an examination into its safety. We cannot say that, as matter of law, the plaintiffs must be held to have taken the risk, and that for this reason they are debarred from a recovery.

We have next to consider whether there was sufficient evidence to warrant a finding by the jury that the defendant did not exercise reasonable care in providing a safe machine. The court instructed the jury, in terms to which no exception was taken, that the defendant was not bound to procure and maintain machinery which should be absolutely safe, or to furnish the best appliances which were known or conceivable; that the question for the jury was not whether the defendant omitted something which it cquld have done, or could have supplied, to make its structures or machinery more safe, but whether in selecting and maintaining the same for use it was reasonably prudent and careful; and that the fact that there were other kinds of machinery and apparatus might be taken into account in determining whether the defendant exercised due and sufficient care. The only question upon this part of the case therefore is whether the plaintiffs were entitled to go to the jury upon the charge of a want of due care on the part of the defendant. The defects relied upon were, a want of sufficient holding power in the brake, and the absence of any contrivance sufficient to stop the bucket in case the brake should fail. In reference to the brake, the plaintiffs introduced evidence tending to show that in its design and original construction a shoe-brake of the dimensions used in this instance was insufficient; that the defendant itself had in use elsewhere two other contrivances, namely, a strap-brake, which would come in contact with more of the surface of the brake-band and a friction V, so called, either of which would hold better than the shoe-brake ; also that a clutch machine which could be operated by a reversible engine both ways, in descending as well as in ascending, would be safer. The plaintiffs also introduced evidence tending to show that in various ways the original efficiency of the shoe-brake had become impaired; namely, that the brake-band had been worn from a smooth surface into ridges by nails used in fastening the leathers to the wooden part of the brake; that the brake-shoe did not cover the whole width of the brake-band, but was allowed to extend over the front edge; that the shaft on which the drum revolved and the boxes of the drum had become so worn that there was about a quarter of an inch space between the shaft and the box of the drum; that by reason thereof a larger quantity of oil ran out upon the head and band of the drum than would otherwise have done; that the holding qualities of the leather on the brake had been impaired from the effect of steam; and that in all these various ways the brake had become less efficient than it had been at the outset.

The plaintiffs also introduced evidence tending to show that the clutch gear, which was used in hoisting ore from the mine, but which was disengaged, when the bucket was to be lowered, might by possibility be used to stop the descent of the bucket in case of the slice-brake’s failing to hold; and that this, by reason of wear and of a change which had at one time been made by bevelling the faces of the horns of the clutches, had become less useful as a possible means of arresting the descent of the bucket, and that in fact it had proved ineffectual to stop such descent at the time of the accident. The defendant in reply introduced much evidence which certainly was sufficient to serve as the basis of a strong argument to the effect that due care had been used in providing and maintaining the machinery in question; but we are unable to say that this evidence so conclusively overcame the force of the plaintiffs’ testimony as to require from the jury a finding in favor of the defendant. It appeared, amongst other things, that three weeks before the accident a machinist, Parker, was employed to put the machine in good order. But if he failed to do so, and if after the completion of his work defects remained, the defendant was responsible, although it may have had reason to suppose him well qualified for his duty. Moynihan v. Hills Co. 146 Mass. 586. Daley v. Boston & Albany Railroad, 147 Mass. 101, 114.

The defendant greatly relies upon the fact, that no person had ever before been injured in descending the shaft by means of this bucket, although it had been much used for that purpose, and urges us to adopt and apply to the present case a rule stated by the Court of Appeals of New York in the following terms: “ When an appliance or machine not obviously dangerous has been in daily use for a long time, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of imprudence or carelessness.” Stringham v. Hilton, 111 N. Y. 188, citing Lafflin v. Buffalo & Southwestern Railroad, 106 N. Y. 136, and Burke v. Witherbee, 98 N. Y. 562. But it is hardly practicable to express by a single formula a rule which shall be applicable to all cases. The rule above stated may have needed no qualification as applicable to the case then before that court. The court had already declared that “ there is no ground for an apprehension even that the machine or its appliances had been impaired by use, or that, for any reason, it was less safe or efficient than at first”; and again, “If there was any defect it must have been in its original construction”; and it held that the undisputed evidence showed that the machine was sufficient in its construction, and was of a kind commonly in use when it was put in, and that it was plain that the injury to the plaintiff was caused by the act of the engineer, who was a fellow servant with the plaintiff. In the present case, the fact that no person had previously been hurt in descending the shaft was entitled to much weight; but in our opinion it was not conclusive of the defendant’s due care, especially in view of the evidence tending to show that the original efficiency of the brake had become impaired. The defendant also urges that we should reach the same conclusion arrived at by the court in that case, to wit, that the injury to the plaintiffs was caused by the act or negligence of the engineer. But this, in the case before us, was a matter for the jury rather than for the court. Mo special ruling was asked for at the trial as to the effect of negligence of a fellow servant, if proved, and we have only to consider whether the court should have withdrawn the case from the jury. If the defendant failed to use due care, it might be held responsible, although the negligence of a fellow servant with the plaintiffs contributed to the accident; but if we could see that the accident was caused solely by the neglect of a fellow servant, the plaintiffs would not be entitled to recover. Griffin v. Boston Albany Railroad, 148 Mass. 143, 145, and cases there cited. As has often been stated, each case must depend on its own circumstances. In the present case, we cannot say that it conclusively appears that the accident occurred solely from the neglect of the engineer. There are indeed strong arguments in favor of the defendant, which might be urged to" any tribunal dealing with the facts; but we are not called upon to decide as to their weight, further than to say that they do not convince us that it was the duty of the court to hold, as matter of law, that there was no evidence which would warrant verdicts for the plaintiffs. We think the jury who viewed the premises, and who saw and heard the witnesses, were warranted in finding verdicts for the plaintiffs, under the rules of law which were applicable to the cases.

Objections were made at the trial to the introduction of certain matters of evidence, which need to be considered. The plaintiffs were allowed to show that other machinery or appliances than those used by the defendant would have been safer; for example, a strap-brake, a friction V, so called, or a reversible engine. In order to aid the jury in determining whether the defendant had exercised reasonable care in providing and maintaining the machinery actually in use, it was competent to show what other kinds of machinery or appliances were used elsewhere, and might have been used at shaft No. 1. Wheeler v. Wason Manuf. Co. 135 Mass. 294, 298. It does not follow from the introduction of such evidence that the defendant was bound to use the very safest or newest, or any particular, machinery or appliances; but, as “reasonable care” is a relative term, the jury might properly consider what could be done to secure safety, and the evidence was competent. The rule of law as to the master’s duty, as has already been said, was given to the jury in terms to which no exception was taken.

The plaintiffs were also permitted to prove instances of slips, brought home to the knowledge of the defendant’s superintendr ent, that had previously occurred in hoisting ores in the bucket in shaft No. 1. The defendant’s objection to this evidence rests chiefly on the ground that, in hoisting ores, the clutch gear was used, while in lowering the bucket its descent was regulated by the shoe-brake. It is not stated in the bill of exceptions that an exception was taken at the trial to the admission of this evidence; but both parties have argued the question of its competency, and we think it was competent. If the clutch gear for any reason failed to hold, the brake might be used to check the descent of the bucket; in like manner, according to the contention of the plaintiffs, the clutch gear might or ought to be available for the same purpose if the brake should fail to hold. There was evidence tending to show that, at the time of the accident to the plaintiffs, an attempt was made to check the descent of the bucket by means of the clutch gear, but that it was not successful. The plaintiffs contended that the machinery as a whole, with the shoe-brake and the clutch gear, was insufficient properly to control the descent of the bucket, and was therefore unsafe and defective; and that the defendant did not exercise reasonable care in continuing its use. We think the evidence objected to was competent. The defendant contended that the machinery had uniformly proved adequate prior to the accident. The evidence in question tended to show the contrary. The defendant was at liberty to prove, if it could, that the former slips occurred from some other cause than a defect in the machinery. The possibility that this might be so did not render the evidence of such former slips incompetent. Wooley v. Grand Street & Newtown Railroad, 83 N. Y. 121, 130.

The plaintiffs contended that the holding quality of the leather of the brake had become impaired from the effect of steam, which came up out of the shaft in large quantities, and frequently came into the room where the machinery was; that it came from pipes and from a pump used at the bottom of the shaft; and, as a part of the evidence tending to establish this, they were allowed to introduce evidence of the machinery down the mine, namely, the pump at the bottom of the shaft, operated by steam from the engine-building belonging to shaft No. 1, and its use, and the escape of steam from it into the engine-building. This was all with reference to the plaintiffs’ contention that the efficiency of the leather upon the shoe-brake had become impaired by the effect of the steam upon it; and was clearly competent. Whether the efficiency of, the brake could or naturally would be thus impaired, whether there was steam enough to produce this effect, and whether in point of fact this effect had been thus produced, were all matters of fact. The circumstance that there had been no steam for seven hours before the accident did not render the evidence incompetent. There was evidence that there was water from condensed steam upon the brake-band when the bucket started to descend. But, besides, the plaintiffs’ contention went further, and they insisted that the quality of the leather had become impaired from the effect of the steam which was habitually or often upon it.

Exceptions overruled.