Negligence, Liability to servant of independent contractor. R.L.c. 106, § 76, is intended to preserve but not to enlarge the common law liability of the owner of machinery to a servant of a contractor employed by the owner for an injury caused by a defect in the machinery due to the owner's negligence or to that of some person entrusted by him with the duty of keeping it in proper condition.
The owner of machinery, who employs a contractor to do certain work by means of the machinery, is not liable for an injury to an employee of the contractor caused by an obvious imperfection in the machinery if it is not out of repair.
In an action by a coal shoveller for injuries from a lump of coal falling on him while employed by a stevedore in trimming coal in the hold of a barge at the defendant's wharf where the coal from the barge was being unloaded by an automatic device which tipped over a tub at the end of the arm of a derrick and after emptying the coal swung the tub back right side up to the hold of the vessel for another load, it appeared that the plaintiff was hired by the stevedore on the day of the accident and that he was injured the first time that the tub swung back after he went to work. There was evidence warranting a finding that the automatic apparatus was not balanced properly and for this reason the tub did not always come back latched and with its mouth up after discharging its load, and that this defect was the cause or a contributing cause of the falling of the lump of coal on the plaintiff, but there was no evidence that there was anything out of repair or that the apparatus was not in its usual condition. Held, that the plaintiff could not recover, the defendant having been under no duty to him to remove the obvious imperfections of the apparatus which it invited him to use.
LORING, J.
[After the foregoing statement of the case.] We agree with the defendant that, as matter of law, on the evidence, Mahoney was an independent contractor; Linton v. Smith, 8 Gray, 147; Conners v. Hennessey, 112 Mass. 96; Morgan v. Smith, 159 Mass. 570; Reagan v. Casey, 160 Mass. 374; Dane v. Cochrane Chemical Co. 164 Mass. 453; Boomer v. Wilbur, 176 Mass. 482; Eldred v. Mackie, 178 Mass. 1; Dutton v. Amesbury National Bank, 181 Mass. 154; and that the plaintiff was his employee and not an employee of the defendant.
We agree with the plaintiff in his contention that where an owner makes a contract to have work done for him by an independent contractor, with his, the owner's, apparatus, the owner owes a duty to employees of the contractor. This is so at common law. Mulchey v. Methodist Religious Society, 125 Mass. 487, 489. Hayes v. Philadelphia Reading Coal Iron Co. 150 Mass. 457. See also Curley v. Harris, 11 Allen, 112; Conlon v. Eastern Railroad, 135 Mass. 195; Perkins v. Furness, 167 Mass. 403.
The effect of R.L.c. 106, § 76, is in our opinion to make certain that the intervening contract does not prevent the owner's owing a duty directly to the employee of the contractor. We do not think that it was intended "to enlarge the liability" of the owner (as was said in Toomey v. Donovan, 158 Mass. 232, 236). In that respect § 76 is like the first clause of § 71 of R.L.c. 106.
Further, we are of opinion that the duty of the owner to the employee of the contractor is the duty owed by an employer to his own employee in such a case. In case of permanent apparatus to be used by an employee, there is an invitation on the part of the owner to use the apparatus. But it is an invitation to use the apparatus then owned by the owner. That being the invitation, no duty grows out of that employment to buy a new and better machine, or, as it is usually said, the employee as matter of contract assumes all obvious risks incident to the use of the apparatus on which he is employed to work.
The same is true in case the work is to be done by an independent contractor. The invitation held out by the owner by making a contract for work to be done with his apparatus is to use that apparatus and not another apparatus. If an employee of the contractor accepts that invitation no duty grows out of that invitation and the acceptance of it to buy a new or better apparatus.
In the case at bar the evidence warranted a finding that the defendant's automatic apparatus was not properly balanced, and that for that reason it did not always discharge its load and come back latched and mouth up, and that this defect was the cause or a contributing cause of the injury here complained of. But there was no evidence that anything was out of repair. There was therefore no evidence that the defendant had failed in the performance of a duty owed by it to the plaintiff.
It may seem hard on the plaintiff in the case at bar to hold that he assumed the risk of this bucket's not working as it should have worked when he was employed in a hurry and was injured the first time the bucket returned after he went to work. Whether that would have made any difference if he had been employed by the defendant or if he had sued the contractor need not be considered. His rights against the defendant grow out of the invitation given the plaintiff by reason of the contract with the plaintiff's employer. By inviting the contractor's employee to use that apparatus the defendant came under no duty to perfect it in matters which were obvious. The invitation given by the defendant to the contractor's employees cannot be affected by the circumstances under which the employee was employed by the independent contractor. This distinguishes the case at bar from Ferren v. Old Colony Railroad, 143 Mass. 197, were it not otherwise distinguishable, as we think it is.
Exceptions overruled.