Twombly v. Consolidated Electric Light Co. , 64 L.R.A. 551 ( 1903 )

Savage, J.

Case by servant against master to recover damages for personal injuries.

The plaintiff was employed upon a ladder about twenty-five feet ffom the ground, and in reaching for a rope with one hand, nearly his whole weight was suspended from a round in the ladder which he held with the other hand. The round broke, and he fell to the ground sustaining injuries. No complaint is made that the plaintiff himself was not in the exercise of due care. But after a verdict for the plaintiff, the defendant now contends, upon a motion for a new trial, that the case shows no want of due care on its own part.

The ladder in question was a forty-foot extension ladder, and was extended at the time of the accident to the plaintiff. There was evidence that an examination of the round after the accident showed it to be dozy on the outside and rotten. The ladder had been in use somewhat more than three years. It seems that the defendant company had no regular rules governing the inspection of appliances. Such inspection and repairs consequent upon it were usually reserved for rainy weather, when the men could not work out of doors. The foreman of construction had general oversight over the appliances, and was under the duty of keeping them in repair. A man was especially delegated to make general repairs, but it does not appear that it was his duty to make inspections. It is true that the testimony of the defendant tended to show that the rounds of the ladder were of white ash and sound, that an examination of the round after the accident showed it to be Avell seasoned and sound, that it broke off at both ends by the sides of the ladder, shoAving fresh breaks, and leaving slivers or “burrs” on the edges of the holes through Avhicli the ends of the round had passed; and the defendant’s evidence tended further to sIioav that the ladder had been inspected only a feAv days before it broke, and Avas found to be all right. And in respect to this testimony, we may add, that if it be reliable, it is utterly incomprehensible how the accident could have happened. The jury certainly Avere Avarranted in finding, as they undoubtedly did, that this testimony was not reliable, and that the round was not sound and reasonably safe. And Ave think it Avas fairly open to the jury to find that the defective condition of the round might have been discovered had it been suitably inspected. Not perhaps by such an inspection as Avould naturally be given to it by the workman upon it, Avhose duty it Avas to work, not to inspect, and who might laAvfully rely upon the presumption that the master had performed its duty; but by such an inspection on the part of the master as reasonably Avould be necessary to make sure that an appliance upon Avhich the servant was to risk his life or limb every time he used it, was reasonably safe.

The plaintiff testified that the round looked all right as he worked upon the ladder. But even that fact does not show that it was all right, or that the unsafe condition might not have been discovered by suitable inspection, such as was incumbent upon the master, unless in some Avay relieved from the duty.

But it is contended as a matter of law that the defendant is not liable upon the evidence. It is urged that there is no duty resting on the master to inspect, during their use, those common tools and appliances with which every one is conversant; that if they Avear out and become defective, the employer may rely upon the presumption that those using them will first detect the defect; and that the employer is not to be held for negligence when the tool is a common one, of the fitness of which the servant is as competent to judge as the master. And- the defendant cites authorities in support of these propositions. But it seems to us that a forty-foot extension ladder is not a common tool or appliance within the meaning of these rules. A defect in a ladder arising from age or decay might not be discoverable by such inspection as a workman is expected to make, and might be upon more careful inspection. To replace a dozy round of a ladder is not, we think, such “ordinary repairs” as a workman using it is usually expected to make, and certainly not. unless the defect is brought to the knowledge of the servant. Of course a master may furnish suitable materials for such renovations, and the circumstances in a given case may show that the workman is expected to make his own repairs. And in such case the master is not responsible for the neglect of the workman. But that is not this case. This plaintiff was under no special duty to inspect or repair this ladder, except as rainy day work in common with his fellow laborers, When he might be directed specially to do so.

But the defendant further says that it provided proper persons to see that the ladder was kept in proper condition and to make ordinary repairs and renewals, and that such persons were fellow-servants of the plaintiff; and from this the defendant contends that if by the negligence of any of these persons the ladder was not suitably inspected and properly repaired it was the negligence of the plaintiff’s fellow-servants, for which the defendant is not responsible.

While it is generally the duty of the master to use reasonable care in seeing that appliances furnished are reasonably safe, and by repairs are kept reasonably safe, doubtless there are some duties respecting the repair of appliances which the master may so delegate to a servant as to escape responsibility for the negligence of the servant in performing them; and doubtless there are some duties which the master may not thus delegate. The line between these classes of duties must necessarily be shadowy, and any rule stating them must be indefinite. Rogers v. Ludlow Manufacturing Co., 144 Mass. 198, 59 Am. Rep. 68. As was said in Rice v. King Philip Mills, 144 Mass. 229, 235, 59 Am. Rep. 80, “It is the duty of the master to exercise due care in employing competent servants, in providing suitable machines, and in keeping them in proper repair, and the master cannot wholly escape responsibility by delegating these duties to a servant. If this could be done, a master might escape all responsibility by employing a competent superintendent to perform all these duties. But there are defects in machinery which are of such a character that the master has been held to perform his duty if he furnishes suitable materials, and employs competent servants, and instructs them to keep the machinery in repair, although the servants neglect to make the repairs, or make them in an improper manner. The master must exercise a reasonable supervision over the manner in which his business is done; but the repairs which machines properly constructed require to keep them in running order may be entrusted to competent servants. They are regarded as incidental to the use of the machines, because they are such as machines in substantially good repair must from time to time need.” This case is cited and relied upon by the defendant here. But ive think the distinction is obvious. If the test be as suggested in the last sentence quoted, it is that ordinarily, at least, the repairs which the master may delegate are those arising incidentally from the use of properly constructed appliances, such ordinary repairs as they must naturally require from time to time by reason of their use. To replace a rotten round of a ladder is not as we have said, such an ordinary repair. The rottenness, such as is complained of here, is not incidental to the use of a well constructed ladder.

Besides, we think the jury were warranted in finding that the master had not delegated his duties with respect to the inspection and repair of this ladder. It had a man to make repairs, so does every master using machinery. But this man had no duty of inspection. It had a foreman of construction of its lines, and this foreman had general oversight over all the appliances, as we have already stated, and the making of repairs when needed. So it is in the case of every corporate master, using appliances and employing men. To say that a master can escape the consequences of the breaking of a rotten round in a ladder, by merely showing that he had a foreman and that that foreman had the general oversight of all appliances, with the general duty among others of. seeing that repairs were made, when necessary, would excuse practically all masters from responsibility in respect of keeping appliances in sound or safe condition. We do not think this is the law. The jury, therefore, upon the whole, were warranted in finding the defendant liable.

The defendant contends that the verdict for $3000 was too large, and that it should be set aside on that account. The plaintiff was a competent lineman earning sixty dollars a month at the time of his injury. There was testimony that between the time of the accident and the time of the trial he had been able to do but comparatively little work. His present condition and his probable future condition were also matters for the jury to take into consideration. The defendant says that the medical testimony show's that he had virtually recovered. The jury however were not confined to the medical testimony, and they evidently thought he had not recovered. We cannot say that the evidence did not justify them in their conclusion. And while the verdict seems large, it is not clearly shown to be so extravagant as to justify the interference of the court.

Motion overruled.