Harkins v. Standard Sugar Refinery

Endicott, J.

To maintain this action, the plaintiff must prove some negligence on the part of the defendant, from which, negligence injury resulted to his intestate.

The alleged injury was caused by the breaking of a rope furnished by the master rigger. The rope broke while hoisting a beam, either by reason of its own imperfection, or the unskilfulness with which it was used by the rigger. The rigger was either the servant of the defendant, or a contractor having exclusive control of the work he had contracted to do. If he was a contractor, the defendant would not be liable for any injury caused by his negligence, whether arising from the selection of *404 his tackle, or the manner of using it. Conners v. Hennessey, 112 Mass. 96 , and cases cited. If not a contractor, but a servant, then he and those employed under him to do the hoisting were fellow servants with the master mason and the men employed as masons under him, of whom the plaintiff’s intestate was one. They together with the carpenters were engaged in the common employment of erecting and completing the structure, under the general direction of the defendant’s agent. See Johnson v. Boston, 118 Mass. 114 . All the master mechanics thus employed were to furnish the men, tools and tackle necessary to do the work in their respective departments. A master thus- employing servants to do a certain work, and to furnish the tools and other appliances necessary for the prosecution of the work, is responsible, to a fellow servant, only for care in the selection of the men thus employed. He is not responsible for a defective axe, rope or trowel so furnished, which in the hands and under the control of one of his servants injures a fellow servant, any more than he is responsible to his servant for the careless and negligent manner in which such tool or appliance is used by a fellow servant. Suppose a carpenter and plumber are engaged in the common employment of making repairs, each bringing, as is usual in such cases, his own tools, the master would not be liable for an injury to the carpenter, caused by a defect in the furnace of the plumber. Two woodmen are employed to cut down trees and they both bring their own axes ; it could not be contended, if one is injured by a defect in the axe of the other, that the master would be responsible. The workman takes the risks of the employment he engages in, which include the results of negligence on the part of others engaged in the same service; and, where all furnish their own tools and are engaged in a common employment, the workman takes the risk of the negligence of his fellow workman in selecting and caring for his tools, as well as in 'the use of them.

Such a case differs from the case where the employer, in prosecuting a particular business, as in operating a railroad, is bound to have suitable machinery and to adopt proper means for carrying it on. If there is a defect in a locomotive engine, caused by the negligence of the servants of the company, charged with the duty of keeping it in repair, the company cannot defend against *405 an action brought by another servant, who while engaged in running the engine was injured by such defect, on the ground that the negligence causing the injury was the negligence of a fellow servant. The duty of furnishing and maintaining a locomotive engine is the duty of the company, which it cannot avoid by delegating it to servants. Ford v. Fitchburg Railroad, 110 Mass. 240, 260 .

This case is also clearly to be distinguished from other cases cited by the plaintiff, where the employer himself furnished the appliances, or was in some way directly connected with or instrumental in their construction or use. Summersell v. Fish, 117 Mass. 312 . Arkerson v. Dennison, 117 Mass. 407 .

No evidence was offered that the defendant was negligent in the selection of any of its workmen. Nor is there any evidence that the beam was raised under the direction of its superintendent, or that the manner of raising it was pointed out by him. The general statement that the superintendent gave orders to the mason, riggers and others, telling them what to do, does not imply that he directed them in what way or manner they were to do their work.

If therefore the riggers brought an imperfect rope, the defendant was not liable for injuries resulting to the plaintiff’s intestate from its breaking; nor is the defendant liable if the riggers used the rope carelessly and improperly, and so caused it to break.

In either aspect of the case, whether the master rigger was a contractor having exclusive control of his department, or a servant acting under the general direction of the defendant, the ruling of the presiding judge in ordering a verdict was correct.

Judgment on the verdict.