Trimble v. Whitin Machine Works , 172 Mass. 150 ( 1898 )

Morton, J.

We understand that the only defect complained of was the want of a gang-plank at the side door of the car, while the plaintiff was helping to load the machine. If we assume, without deciding, that a gang-plank was a part of the “ ways, works, or machinery,” there is nothing to show that the defendant had not furnished a suitable gang-plank. If the defendant furnished a suitable gang-plank, it was not bound to see that it was properly placed at the door while the men were putting the machine into the car. It would have performed its duty in furnishing the gang-plank. Robinson v. Blake Manuf. Co. 143 Mass. 528. Ashley v. Hart, 147 Mass. 573. Thyng v. Fitchburg Railroad, 156 Mass. 13. Carroll v. Western Union Telegraph Co. 160 Mass. 152. Allen v. Smith Iron Co. 160 Mass. 557. Under the circumstances indicated, the putting of the gang-plank in place was the work of the men themselves, or it belonged to some superintendent or foreman of the defendant to see to it. If it was the former, then it is clear that the defendant is not liable to the plaintiff for an injury occurring through the failure or neglect of the plaintiff or his fellow workmen to do something which he or they ought to have done. Nobody is referred to in the exceptions as superintendent, and the only person who is referred to in them as a foreman is Cram. But there is nothing to show whether his sole or principal duty was that of superintendence, or whether it was a part of his duty to see that the gang-plank was in place at the side door of the car while the men were loading the machine. It does not even clearly appear that he was a foreman of the defendant, though perhaps that might be fairly presumed. Therefore, even though we make in the plaintiff’s favor the assumption which we have made, he fails on this branch of the case.

The result is that the exceptions must be overruled.

So ordered.