Negligence, Employer's liability. In an action by a workman in a factory for making bridge materials against his employer under R.L.c. 106, § 71, cl. l, for personal injuries from a defect in the ways, works or machinery of the defendant, there was evidence that the plaintiff was injured from being struck by heavy iron trusses which fell owing to the breaking of the chain by which they were being hoisted, that the link which broke was crystallized by reason of constant use, that the existence of crystallization cannot be determined on inspection even by an expert but that it can be prevented by annealing, and that chains in constant use should be annealed every six months to prevent crystallization, that the chain which broke was lying on the floor and was used generally every day and was put around the trusses by a fellow workman of the plaintiff, that there were ten or twelve larger chains about the shop where the plaintiff and his fellow workman were at work, that if the chain used had had its apparent strength it would have been more than sufficient to bear the weight of the trusses but that owing to the crystallization of the link that broke it did not have one half of its apparent strength. Held, that the evidence warranted a finding that the furnishing of such a chain among others for use by the plaintiff was negligence on the part of the defendant, and that the fact that the defendant furnished a number of stronger chains did not help its case.
LORING, J.
In the case at bar the plaintiff was working for the defendant with one Damouchelle, a fellow servant. In order to raise two iron trusses, Damouchelle took a chain lying on the floor and generally used every day, passed it around them, hooked on the fall and directed the plaintiff to pull on one end of the trusses as they were raised by the engine. When the trusses had been hoisted about a foot off the floor, one of the links of the chain broke and the end of the trusses struck the plaintiff, causing the injury here complained of. There was evidence that the link which broke was crystallized and that this crystallization was caused by constant use; that a chain made up of links of the size of the link in question, not crystallized, would bear more than twenty-two hundred pounds, and only nine hundred to one thousand pounds when crystallized. The two trusses weighed from sixteen hundred to seventeen hundred pounds. It further appeared that the fact of crystallization cannot be determined on inspection even by an expert, but that it can be prevented by annealing the chains, and that chains in constant use should be annealed every six months, to prevent crystallization. It appeared that there were ten or twelve larger chains around the shop where Damouchelle and the plaintiff were at work.
There is no question of the right of the jury on this evidence to find that the chain in question had not been annealed within six months, that for that reason it had become crystallized, and being crystallized it broke and caused the accident. And further, that when crystallized it did not have half its apparent strength. To furnish such a chain among others for use is plainly negligence on the part of an employer.
The difference between the case at bar on the one hand and Thyng v. Fitchburg Railroad, 156 Mass. 13, and Young v. Boston Maine Railroad, 168 Mass. 219, on the other hand is that in the latter two cases the condition of the pin was apparent on inspection. The defect in question in Miller v. New York, New Haven, Hartford Railroad, 175 Mass. 363, was treated as a defect of the same kind. The negligence in the case at bar consists in furnishing a chain which through the defendant's negligence had not half its apparent strength. It does not help the defendant to show that it furnished a number of stronger chains. Had the chain in question had its apparent strength it would have carried the load.
Exceptions overruled.