Geloneck v. Dean Steam Pump Co. , 165 Mass. 202 ( 1896 )

Barker, J.

In the opinion of the majority of the court, the exceptions should be overruled.

1. Whether the plaintiff was hurt by an occurrence the risk of which he had assumed was a question for the jury, because of the plaintiff’s contention that there were no washers on the truck, and that their absence constituted a defect, which questions of fact it appears by the bill of exceptions were left to the jury without objection on the part of the defendant.

2. The ruling that there was no sufficient evidence that the plaintiff’s injuries were caused by the negligence of one whose sole or principal duty was that of superintendence was rightly refused. Upon the evidence, whether Ryan stood in that relation was a question of fact. See O'Neil v. O’Leary, 164 Mass. 387.

3. The jury was instructed in substance, that, to constitute a defect in the condition of the ways, works, or machinery, it was not necessary that any particular instrument should be defective in itself; that, for instance, the plaintiff need not show that there was a fault in the truck, that it had a cracked wheel, or a broken axle-tree, or something of that kind which gave way, that in the sense of the law a thing may be found to be not reasonably safe and suitable if it is insufficient and unsuitable for the purposes to which it is applied and is intended to be applied, and under the conditions in which it is used and is intended to be used; that the question is not limited to whether there is something which has a weak spot, or a crack, or is decayed, but it involves the inquiry whether the appliances, as they are put together and used and intended to be used, are reasonably safe and suitable. In connection with this instruction the jury was also told that the defendant was not obliged to have a faultless arrangement, or one with which nobody could find any fault, but only to use reasonable care to have things reasonably .safe and suitable.

These instructions were correct. An unsuitableness of ways, works, or machinery for work intended to be done and actually done by means of them, is a defect within the meaning of St. 1887, c. 270, § 1, cl. 1, although the ways, works, or machinery are perfect of their kind, in good repair, and suitable for some work done in the employer’s business other than the work in doing which their unsuitableness causes injury to the workmen. In such a case the employer is wrong in furnishing appliances for a use for which they are unsuitable, and in effect in so ordering and carrying on his work that, without fault of the ordinary workman, the natural consequence will be that the appliances will be used for purposes for which they are unsuitable.

The circumstance that the employer intends that his work shall be done in the manner and by the means in use when the accident occurs distinguishes the case from those in which he furnishes a stock of appliances from which the workman is to select such as are fit for the particular work in hand, as in Zeigler v. Day, 123 Mass. 152; Johnson v. Boston Tow-Boat Co. 135 Mass. 209; Carroll v. Western Union Telegraph Co. 160 Mass. 152; Allen v. Smith Iron Co. 160 Mass. 557. Such an unsuitableness is neither accidental nor temporary, nor due to the negligence of a workman who is not charged with the duty of attending to the fitness of the ways, works, and machinery; and this circumstance distinguishes the present case from Ashley v. Hart, 147 Mass. 573; and from O’ Connor v. Neal, 153 Mass. 281; O’Keefe v. Brownell, 156 Mass. 131; Beauregard v. Webb Granite & Construction Co. 160 Mass. 201; and from Carroll v. Willcutt, 163 Mass. 221. An employer cannot say that he is not in fault, if his ways, works, and machinery, when used as he intends them to be used, are unsuitable for his work. See Smith v. Baker, [1891] A. C. 325.

4. The evidence as to other appliances which were at hand, and other methods which might have been used to move the pump, was admissible upon the question whether the superintendent was at fault in causing it to be moved as he did.

5. Whether the absence of washers would make the truck defective did not depend upon the purpose they were intended to serve, but upon their actual effect. Evidence that the purpose of washers was to prevent the wheels from rubbing against and working out the pins, and not to prevent the truck or its load from shaking, was immaterial. Whether it was a proper matter for expert testimony we do not consider.

Exceptions overruled.