Negligence, Employer's liability Evidence, In rebuttal. Practice, Civil, Conduct of trial, Exceptions, Judge's charge.
In an action under R.L.c. 106, § 73, by the mother and only next of kin of a boy seventeen years and six months of age, for causing his instantaneous death, if it appears that the deceased had come from Italy and had been in this country only two weeks, that his father had died in Italy six years before, leaving the plaintiff as his widow wholly without means of support, that during the two years before the deceased came to this country he had worked for fifteen cents a day which he gave to the plaintiff and which was her only source of income and that he came to this country to get money for her support, there is evidence for the jury that the plaintiff at the time of the death of the deceased was dependent upon his wages for support within the meaning of the statute.
In an action under R.L.c. 106, § 73, by the next of kin of a boy seventeen years and six months of age, for causing his instantaneous death while employed in a stone quarry of the defendant, from a stone falling upon him owing to the breaking of a chain attached to a derrick by which it was being hoisted, if it appears that the boy had been in this country only two weeks and was employed by the defendant to assist a certain workman who was running a steam drill at the quarry near the derrick by doing what he was told to do by this workman, to whom the duty of instructing him had been delegated by the defendant's superintendent, and it can be found that under the instructions so given to him he had a right to expect that stones would not be swung over his head without a warning cry first being given, and if there is evidence that on this occasion no such warning was given, the question of the due care of the deceased is for the jury, as also is the question whether he had assumed the risk of such an accident.
In an action under the employers' liability act against the proprietor of a stone quarry for causing the death of an employee of the defendant through a defect in the condition of the ways, works or machinery of the defendant, if it appears that the death of the employee was caused by a stone falling upon him as it was being swung over his head by a derrick owing to the breaking of a defective link in the chain by which it was suspended, and that the weakness of the link was due to its having been overheated when welded by a servant of the defendant so that its structure became crystallized to a dangerous degree, and there is evidence on which it can be found that the defect in the link might have been discovered by inspection and that no inspection was made, the question of the defendant's negligence is for the jury.
A workman in a stone quarry does not assume the risk of injury from a stone falling upon him owing to the breaking of a defective link in a chain by which it is being hoisted if the defect is unknown to him and is due to the negligence of a servant of his employer in overheating the link when welding it.
An exception to the admission by a presiding judge of evidence in rebuttal cannot be sustained unless the excepting party shows that the evidence was not admitted merely as a matter of discretion.
Language of a presiding judge in his charge to a jury, which may be open to criticism, gives no ground for exception if the judge after hearing the objections to the charge finally leaves the case to the jury correctly in unmistakable language.
SHELDON, J.
In our opinion there was evidence upon which the jury had a right to find for the plaintiff. The case was submitted to them only on the first and second counts of the declaration; and the judge finally ruled in unmistakable language that the only negligence for which the defendants could be held liable was the furnishing of a chain in which the link that broke and thus caused the accident had been overheated by the blacksmith (who was the defendants' servant) in welding it, so as to weaken it and make it unfit for use. There seems to have been no dispute that this link was welded by the defendants' servant; that the chain then was furnished by the defendants to their derrickmen, to be used in hoisting stone; and that this link broke under the weight of a stone which was being hoisted, and thus caused the accident. There was evidence on which it could be found that this link was overheated and thereby so weakened as to cause the accident, and that this defect in the link might have been discovered by proper inspection. The jury now must be taken to have found that these facts were proved; and also that the deceased was himself in the exercise of due care and had not assumed the risk of the accident which happened; and that the plaintiff was dependent upon his earnings for support. It seems to have been conceded that proper notice was given; that the deceased died without conscious suffering; and that the plaintiff was his only next of kin. Accordingly the verdict for the plaintiff must stand unless some one or more of the defendants' specific objections are found to have been well taken and to be material.
1. The question whether the plaintiff was dependent for support upon the wages of the deceased, her son, properly was left to the jury. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, 100. Mulhall v. Fallon, 176 Mass. 266, and cases there cited. Apparently she had no other means of support, and this is more than enough to satisfy the statute. Mehan v. Lowell Electric Light Co. 192 Mass. 53. McNary v. Blackburn, 180 Mass. 141, 144. Houlihan v. Connecticut River Railroad, 164 Mass. 555. The case differs from Hodnett v. Boston Albany Railroad, 156 Mass. 86.
2. There was evidence that the deceased was in the exercise of due care. He was in Capuana's immediate presence, ready to assist him, as it was his duty to be. The instructions which he had received from Capuana, to whom the duty of instructing him had been delegated by the defendants' superintendent, are to be treated as if they had been given by the defendants themselves. Dolan v. Boott Cotton Mills, 185 Mass. 576, 581. La Fortune v. Jolly, 167 Mass. 170. Bjbjian v. Woonsocket Rubber Co. 164 Mass. 214, 220. But under these instructions it might be found that he had a right to expect that stones would not be swung over his head without a warning cry first being given, and that it was not careless for him to act upon this expectation. For the same reasons it cannot be said as matter of law that he had assumed the risk of such an accident, though doubtless the jury might have found that this was the fact. Garant v. Cashman, 183 Mass. 13, 18. Graham v. Badger, 164 Mass. 42, 48.
3. There was evidence of negligence for which the defendants were responsible under the provisions of R.L.c. 106, § 71. The jury might have found that the chain which broke was furnished by the defendants to be used with the derrick, constituting with the derrick the machinery or instrumentality intended to be used in moving stones out of the quarry to the place in which they were to be wrought. It was like the rope which was used with a derrick in Graham v. Badger, 164 Mass. 42, 48, and which is there spoken of as one of the defendant's "permanent appliances." They furnished this chain to be used as a permanent instrumentality for the very purpose and in the very manner in which it was being used. Haskell v. Cape Ann Anchor Works, 178 Mass. 485. They are not excused by the fact that they bought their chains from reputable makers; for the jury might have found (if indeed this question was in dispute) that not only was the link which broke weak and unfit for use, but that this weakness was due to a fault of the defendants' servant whom they had entrusted with the duty of preparing and fitting it for use in allowing it to become overheated so that its structure became crystallized to a dangerous degree. It was their duty to provide reasonably safe and proper appliances and machinery for the conduct of their business so far as this could be secured by the exercise of proper care; and if they chose to delegate the performance of this duty to one of their servants they became responsible for his negligence both under the statute and at common law. R.L.c. 106, § 71, cl. 1. Boucher v. Robeson Mills, 182 Mass. 500. Haskell v. Cape Ann Anchor Works, 178 Mass. 485, 486, 487. Moynihan v. Hills Co. 146 Mass. 586, 591, et seq. Cushing v. Smith Iron Co., ante, 310.
The defendants, under the instructions given to the jury, could not have been held for any negligence of the derrickman in failing to give the usual warning to his fellow servants, or in selecting a weak chain when a sufficient number of suitable chains had been provided; and the cases of Johnson v. Boston Tow-Boat Co. 135 Mass. 209, and Harnois v. Cutting, 174 Mass. 398, are not applicable. See Ford v. Eastern Bridge Structural Co. 193 Mass. 89.
There was evidence on which the jury could find that the defect in this link might have been discovered by inspection, but that no inspection was made. Indeed, the defendants do not assert that any inspection was made; they contend that there were no practicable methods of inspection, and that the methods suggested by the plaintiff in the testimony put in would offer no protection to their servants. But this was plainly a question for the jury. Harris v. Putnam Machine Co. 188 Mass. 85. Murphy v. Marston Coal Co. 183 Mass. 385. Toy v. United States Cartridge Co. 159 Mass. 313.
The jury might well have found that the direct and proximate cause of the accident was the breaking of the chain through the weakening caused by the overheating of the link which broke. The risk of the existence of such a defect, unknown to the servant, is never assumed by him. Hopkins v. O'Leary, 176 Mass. 258, 264, and cases there cited. And, even if the jury might have found on the evidence that the breaking of the chain was due not to the weakening of the link but either to a former fracture or to some other cause, yet under the instructions given to them it is manifest that they have not done so.
4. The presiding judge had a right in the exercise of his discretion to admit in rebuttal the testimony of Blodgett and Fairbairn, and the bill of exceptions does not show that this evidence was not admitted as a matter of discretion merely.
5. It may be that some of the language used in the charge was open to criticism; but the defendants have no right to complain of this, in view of the manner in which the case finally was left to the jury.
We have considered all the questions which have been argued for the defendants. It is not necessary to take up specifically the many different requests for instructions which were presented. They all are disposed of by what has been said. There was no material error at the trial.
Exceptions overruled.