Wilson v. Willimantic Linen Co.

50 Conn. 433

• Court: Supreme Court of Connecticut
• Decided: January 15, 1883
• Status: Published

Opinion

Park, C. J.

(After stating the facts.) Upon these facts the question is, do they establish negligence in the defendants, which caused the injury to the plaintiff? If the injury was produced by the combined negligence of both parties the plaintiff cannot recover. He is bound to show that the injury was caused by the negligence of the defendants, which he cannot do if his own negligence contributed to its production. Hence, where a question is made with regard to such contributory negligence of a plaintiff, it is convenient to consider separately the facts with regard to the negligence of each party.

Were the defendants guilty of negligence? The controling facts of the ease upon this point are, that the counter-shaft was constructed and left in an unfit and dangerous condition for use; that it was put up in the defendants’ mill, together with other shafting, in order to enlarge the manufacturing capacity of their works, and was run for the first time on the day when the accident occurred; that the superintendent had charge of the construction and use of all the machinery of the mills, both new and old; that he superintended the construction of the shaft in question, and had knowledge of its dangerous condition; that he contented himself with giving orders to the overseer of repairs to put collars upon the shaft and make it safe; that after machines were made ready for the workmen in the new department, he gave directions to the overseer of the room to make the shaft ready for communicating power to the new machines and run the same; and that as soon as power was applied the shaft- fell' and the plaintiff was injured. These are the principal facts in this part of the ease, and upon them rests the question of the defendants’ negligence.

The plaintiff entered the defendants’ service- as an employee in their manufacturing establishment; and we are first to consider what duties they assumed regarding him as their servant, and what risks he assumed in the service. The books are full of cases on the subject, but, although they are numerous, they generally agree that the employer is bound to exercise reasonable and proper care to furnish the employee with reasonably safe machinery and tools, and is responsible for neglect in this, particular which causes injury .to the latter. All ordinary risks incident to the service, including those resulting from the carelessness of fellow-servants, are assumed by the employee, and for these the employer is not responsible.

In Ford v. Fitchburg R. R. Co., 110 Mass., 240, the court say:—“The rule of law which exempts the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the exercise o-f ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required. One who enters the employment of another has a right to count on this duty, and is not required to assume the risks of the master’s negligence in this respect. The fact that it is a duty which must always be discharged, where the employer is a corporation, by officers and agents, does not relieve the corporation from this obligation. The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants • of those who are engaged in operating it. They are charged with the master’s duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require.”

This was said in a case where an engineer sought to recover damages for an injury he received from the explosion of his engine which was out of repair, and the defence was that the want of repair was owing to the negligence of fellow-servants in the department of repairs.

Wharton, in his work on Negligence, § 211, says:—“The question is that of duty; and without making the unnecessary and inadequate- assumption of implied warranty, it is sufficient for the purposes of justice to assert that it is the duty of an employer inviting employees to use his structures and machinery, to use proper care and diligence to make such structures and machinery fit for use.” In § 212 he says:—“At the same time we must remember that where a master personally, or through his representatives, exercises due care in the purchase or construction of buildings and machinery and in their repair, he cannot be made liable for injuries which arise from casualties against which such care would not protect. It is otherwise if there be a lack in such care, either by himself or his representatives. The duty of repairing is his own, and, as we shall hereafter see, the better opinion is that he is directly liable for the negligence of agents when acting in this respect in his behalf. If the master knows, or in the exercise of due care might have known, that his structures or engines were insufficient, either at the time of procuring them, or at any subsequent time, he fails in his duty.” In § 282 he says :— “It is important to remember that the master is liable when the negligence of the offending servant was as to a duty assumed by the master as to working place and machinery. A master, as we have already seen, is bound, when employing a servant, to provide for the servant a safe working place and machinery. It may be that the persons by whom buildings and machinery are constructed are servants of the common master, but this does not relieve him of his obligation to make buildings and machinery adequate for working use. Were it otherwise, the duty before us, one of the most important of those owed by capital to labor, could be avoided by the capitalist employing only his own servants in the construction of his buildings and machinery. In point of fact this is the case in most great industrial agencies; but in no case has this been held to relieve the master from the duty of furnishing to his employees material, machinery and structures adequately safe for their work. He does not guarantee that either building, machinery, or organization shall be perfect; but he is bound by the rule sic utere tuo ut alienum non Icedas, to use such diligence and care in this relation as is usual with good business men in his line. It is not enough for him to employ competent workmen to construct his apparatus. If an expert, he must inspect the work; and if not, he must employ another competent person as expert for the purpose. If such, however, is his duty, he must not only see that the structure he provides is suitable at the outset, but that it is kept in repair, and the repairer’s negligence in this respect is the master’s negligence.” Pierce, in his work on Railroads, § 370, says:—“The company, like any master, is under an obligation to its servants to use reasonable care to provide and maintain a safe road-bed, and suitable machinery, engines, cars, and other appointments of the railroad, and is liable to' them for injuries resulting from defects which it knew of, or ought to have known of, and could have prevented by the exercise of such care; and it is under the same duty and liability to maintain these instrumentalities in proper condition. The servant assumes the natural risks of his employment, but not those which the wrongful act of the company has added.”

In Bartonshill v. Reid, 3 Macq. H. L. Cases, 266, Lord Cranworth said “that where a master employs his servant in a work of danger he is bound to exercise due care in order to have his tackle and machinery in a safe and proper condition, so as to protect the servant against unnecessary risks.” In Railroad Co. v. Fort, 17 Wall., 553, the court, in commenting on the risks which servants are presumed to have assumed by the contract of service, said: ■—“ But this presumption cannot arise where the risk is not within the contract of service, and the servant had no reason to believe he would have to encounter it. If it were otherwise principals would be released from all obligations to make reparation to an employee in a subordinate position for any injury caused by the wrongful conduct of the persons placed over him, whether they were fellow-servants in the same common service or not. Such a doctrine would be subversive of all just ideas of the obligations arising out of the contract of service, and withdraw all protection from the subordinate employees of railroad corporations. These corporations, instead of being required to conduct their business so as not to endanger life, would, so far as this class of persons is concerned, be relieved of all pecuniary responsibility in case they failed to do it. A doctrine that leads to such results is unsupported by reason, and cannot receive our sanction.” In Hough v. Railway Co., 100 U. S. Reps., 213, the court said:—“ A railroad corporation may be controlled by competent, watchful and prudent directors, who exercise the greatest caution in the selection of a superintendent or general manager, under whose supervision and orders its affairs and business, in all of its departments, are conducted. The latter, in turn, may observe the same caution in the appointment of subordinates at the head of the several branches or departments of the company’s service. But the obligation still remains to provide and maintain in suitable condition the machinery and apparatus to be used by its employees—an obligation the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered. Those, at least, in the organization of the corporation, who are invested with controlling or superior authority in that regard, represent its legal personality; their negligence, from which injury results, is the negligence of the corporation. • The latter cannot, in respect of such matters, interpose between it and the servant who has been injured without fault on his part, the personal responsibility of an agent, who in exercising the master’s authority has violated the duty he owes, as well to the servant as to the corporation. To guard against misapplication of these principles we should say that the corporation is not to be held as guaranteeing or warranting the absolute safety, under all circumstances, or the perfection in all of its parts, of the machinery or apparatus which may.be provided for the use of employees. Its duty in that respect to its employees is discharged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care as well in their purchase originally as in keeping and maintaining them in such condition as to he reasonably and adequately safe for use by employees.”

This was said in a case where the plaintiff’s decedent, an engineer upon the defendants’ railroad, was killed while in the performance of his duty in the defendants’ employment, by reason of the defective condition of his engine; which defective condition was owing to the negligence of their master-mechanic and of the foreman in their repair department, who were competent and proper persons for their positions. The defence in the case was, in part, the same as it is here, namely, that due and proper care had heen exercised in the purchase of the engine and in the selection of the officers charged with the duty of keeping it in proper repair.

The case of Davis v. Vermont Central R. R. Co., 55 Verm., (not yet out, this case appearing in a magazine,) is a very recent and important one upon this subject. The marginal note is as follows:—“ In an action on behalf of a fireman of a railroad company, killed by the’ washing out of a culvert, the negligence of the company’s bridge-builder in constructing, and of the road-master in repairing the culvert, is attributable to the company.” It was conceded in the case that the bridge-builder and road-master were ordinarily skillful and careful men in their several employments, and that the defendants were guilty of no negligence in selecting and employing them. It further appeared that the bridge-builder was intrusted by the defendants with the construction and maintenance of all the bridges and culverts in that division of the road, and that the road-master was likewise intrusted with the construction and maintenance of the track and road-bed of the road. The road-master had under him section-foremen who had charge of section-workmen. These were the important facts of the case. The defendants contended that the bridge-builder, road-master and section-foreman were fellow-servants of the decedent in the running of their trains, and consequently that their negligence was not in law attributable to them, but was one of the risks which the decedent assumed when he entered their service. The court, in deciding the case, use the following language:—“The general principles underlying the determination of the duties and liabilities of the master and the risks which the servant assumes by entering upon the employment, are very generally agreed upon. Where the employment is hazardous it is very generally agreed that the master assumes the duty of exercisirig reasonable care and prudence to provide the servant a reasonably safe place and reasonably safe machinery and tools to exercise the employment, and to maintain the place, machinery and tools in a reasonably safe condition during the time of such employment. He also assumes the duty of exercising the same measure of care and prudence to provide suitable materials and suitable and sufficient co-servants to properly exercise the employment or carry on the business. When this duty is discharged by. the master the servant assumes all risks and hazards attendant upon the exercise of the employment or performance of the work, including those, resulting from the negligence and carelessness of co-servants. The diversity in the decisions has arisen in determining who are co-servants in the common employment, and whether the master is to be charged with the negligence of an employee, who in some parts of the employment is strictly a co-servant with the person injured, and in other parts is discharging a duty incumbent upon the master.” And the court, in criticising the doctrine of the Lord Chancellor in Wilson v. Merry, Law Reps., 1 House of Lords Cases, Scotch App., 326, and of other cases which hold that if the master attends -in person to the management of his affairs he is responsible for his negligence which causes injury to his servant, but if he commits such management to an agent who is competent and proper for the position he is not responsible for the agent’s negligence which causes a like injury, use the following language:—“ The question is naturally suggested, why should he [the master] not also be liable for the negligence of the agent or servant whom he has appointed to discharge the same duty in his stead, although he has exercised due care to select a person competent and skillful ? Is such an agent or servant, while performing the duty cast by the relation upon the master, a fellow-workman with the master’s servant in such a sense that the latter cannot and ought not to recover of the master for injuries sustained through the negligence of the former? If so the master, who performs his part of the duty, .as this defendant and all corporations must,' by agents and servants, secures an immunity from liability which the master who personally enters the service to manage and direct the performance of the work, does not enjoy. The doctrine now established by the United States Supreme Court, and by most of the courts of last resort in the several states, holds the master liable to his workman for injuries sustained from the negligent performance of duties which rest by the relation upon the master, whether the master performs such duties personally or through an agent or servant.” In conclusion the court say:—“ When the case of Hard v. Vermont & Canada R. R. Co., 32 Verm., 473, was decided, the liability of the master was held to be dependent upon whether the servant whose negligence caused the injury and the servant injured were fellow-servants in a common employment and work. Making this the test for determining the master’s liability, the reasonings' and conelusions of the late Chief Justice are unanswerable. But this test, while determinative in a great number of cases, has been abandoned both in England and in this country, and in lieu thereof the master’s liability has been made to rest upon whether the negligence arose in the performance of a duty for the careful discharge of which he became responsible when he assumed the relation of master to the injured servant. On these principles, which we think furnish the true ground upon which the master’s liability rests, and on the American application of them, the bridge-builder and road-master, while inspecting and caring for the defectively constructed culvert, were performing a duty which, as between the intestate and the defendants, it was the duty of the defendants to perform. Their negligence therein was the negligence of the defendants, being the agents of the defendants for the performance of those duties. Notice to them in regard to the defective construction of the stockade as affecting the safety of the culvert, was notice thereof to the defendants.”

On the • same principle the superintendent and master-mechanic and the overseer of repairs in the defendants’ establishment were performing the duty which “the relation of master and servant cast upon the defendants, when they superintended the construction and undertook to attend to the condition of the countershaft in question. Their act was the act of the defendants, their knowledge of its unsafe condition was the defendants’ knowledge, and their negligence in the premises was also the negligence of the defendants.

Suppose that the superintendent and master-mechanic had been the owner of the defendants’ establishment, and was running the works when the injury occurred. Could there be a doubt regarding his liability to the plaintiff, so far as the question we are now considering is concerned ? All the cases hold that he would have been bound to exercise reasonable care to provide safe appliances for the plaintiff's use. Such appliances were not provided. The superintendent knew that the countershaft was not fully constructed, and that it was left in an unsafe and dangerous condition to be used. What care did he take to make its condition safe before he ordered it to be run ? He simply directed the overseer of repairs to complete the unfinished appliance, but took no measures to ascertain whether it was finished or not before the plaintiff was injured. All the authorities cited, and indeed all the cases, hold that it is not enough for the master to order safe machinery to be constructed, but he must exercise reasonable care to see that the machinery is in fact safe after the order has been executed. It would be an easy matter for a master to escape liability if an order to construct safe machinery would be sufficient. That would be equivalent to exculpating him entirely from all liability in this regard. It is clear there would have been no escape for the superintendent and master-mechanic, so far as his negligence was concerned, had he been the master here. How then can there be any escape for the defendants on this ground ? The superintendent and master mechanic was performing the duty of the defendants when he superintended the construction of the appliance in question, for he had the special charge of this department of the defendants’ business. The case is barren of all information tending to show that any officer of the corporation above the superintendent cared for the proper construction and safe condition of this appliance, and if the superintendent did not represent the defendants ■ in this regard then they had no representative, and they were equally culpable for the want of one, for an unsafe and dangerous appliance was in fact furnished for the plaintiff’s use, and they were bound to know what was being done in their immediate presence in this respect. The appliance was constructed to enlarge the capacity of the defendants’ works, and so far as the enlargement and every thing pertaining to the case are concerned, all were new, and stand exactly as the defendants’ works originally stood when they first began to be operated. We think it is clear that there is no escape for the defendants so far as the question of their negligence is concerned.

But it is said that the plaintiff, in belting the countershaft to the spinning frame, was engaged in the same common employment with those who constructed the shaft itself; that they all were preparing the spinning frames for use, and consequently were co-laborers or fellow-servants together; that the overseer of repairs was one of them, and for his negligence in omitting to put collars upon the shaft the defendants are not responsible, for it was the negligence of a fellow-servant, the risk of which the plaintiff assumed by the contract of service. And they cite the case of Murphy v. Boston & Albany R. R. Co., 88 N. York, 146, in support of the claim. If it be conceded that the overseer of repairs was a fellow-servant of the plaintiff in the work he was doing, still the claim does not exonerate the defendants from the effect of the negligence they committed through their superintendent and master-mechanic, for the law is so that the master is responsible for an injury produced by the combined negligence of himself and a fellow-servant of the injured employee. 2 Thompson on Negligence, 981; Wharton on Negligence, § 227; Paulmier v. Erie R. R. Co., 34 N. Jer. Law, 157; Cayzer v. Taylor, 10 Gray, 274; Booth v. Boston & Albany R. R. Co., 73 N. York, 38; Perry v. Ricketts, 5 Ill., 234.

But the case of Murphy v. Boston & Albany R. R. Co., (supra,) was a very different one from the case at bar. There the court held that the employees who repaired the boiler of the steam engine that exploded and injured the plaintiff were fellow-servants with the employee who set the safety valve to the boiler, for the engine was no more a complete machine without the safety valve than it would have been without the boiler. These essentials were simply different parts of the same engine. Here the belt formed no part of the countershaft. It merely communicated the power of the shaft to the spinning frames, and was as much a part of the frames as it was of the shaft. If this connection was a part of the shaft, then all the connections of the shaft back to the engine or water wheel, as the case may be, were parts of it, and the whole establishment was one vast machine. The defendants admit that the spinners would have had a cause of action against the defendants had they been injured by the falling of the countershaft, and still they put on and off the belt making the connection between the countershaft and spinning frames many times a day, in doing their work as spinners. The belt is turned on to a loose pulley when it is turned off the frame, but the pulley is a mere convenience for putting the belt on again. The act itself is precisely the same as was that of the plaintiff when he was injured. The case of Murphy v. Boston & Albany R. R. Co., which the defendants rely upon in this part of the case, holds, that if the engine had gone out upon the road, and its fireman or engineer had been killed by its explosion while in use, there would have been a cause of action against the company. But it might have been said with equal propriety in that case, as it can be said here, that the fireman in supplying fire and water to the engine was merely preparing it for use, as much as the boiler-maker in repairing the boiler; and that the work of both was essential before the engine would be ready for use. Fire and water in that case performed a similar office with that of the belt here. The engine was a complete machine in and of itself, but it required fire and water to make it useful. The countershaft was a complete appliance in and of itself, but it was useless without a belt. There is nothing in this claim.

Was the plaintiff guilty of negligence which contributed substantially to produce the injury of which he complains ?

It is said by the plaintiff that the court below has not found that he was negligent in not making an examination of the shaft before applying the belt to it; but on the contrary has found that he was not in fact negligent. The defendants contend that negligence is a compound question of law and fact; that the court having found all the facts, it is for the law to say whether he was guilty of negligence or not. Without stopping to consider whether or not this is so, in a case of this character, we think it is clear that an important fact is wanting to constitute negligence, so as to relieve the defendants from responsibility upon this ground. It is not enough for a plaintiff to be negligent. He is not necessarily deprived of the right to recover simply because he has been so; but the additional fact must appear that the negligence contributed substantially to produce the injury for which he sues. Here the claimed negligence consists in not making an examination of the shaft before putting the belting on it. Had the plaintiff made the examination what probability was there that he, a non-expert, taken that day from the street, would have discovered that the countershaft was without collars and needed them, when there were two other modes'used in the mill for hanging shafts which rendered collars unnecessary, and in relation to one of them the court finds that the fact whether the shaft needed collars or not could be ascertained “ only upon a careful inspection.” The overseer of repairs, an expert, who knew that the shaft needed collars, made an examination of-it just before it was belted, and failed to discover that it was without them. The superintendent of the mill, who was also the master-mechanic of all the defendants’ works, had paid daily visits to the room in his professional capacity for a considerable period of time, and though he likewise knew how the shaft was hung, and that it was constructed without collars, he failed to discover that it was then without them. Had the plaintiff made an examination he was only bound to look for obvious, manifest defects. Wood (Master & Servant, 749,) says: “ The servant is not required to inspect the appliances of the business, to see whether or not there are latent defects that render them more than ordinarily hazardous, but only to see whether there are defects or hazards that are obvious to the senses. If the servant, from any source, has the same information that the master has, he is bound to act upon it; but the general statement made in some of the cases, that if the servant has the same means of information that the master has, the latter is excused from liability, must be taken in a qualified sense, and only applies to information in fact possessed by the servant or that which is patent and obvious. * * If, as is said in some of the cases, a servant cannot recover if he has the same means of information that the master has, he would be bound to look for defects, to inspect the appliances of the business, and would thus be burdened with the duties that legally and properly devolve upon the master, and could seldom recover for injuries resulting from the use of defective machinery.”

Such being the case, the finding of the court that the defect in question could not have been discovered by the plaintiff without “a careful inspection,” is equivalent to finding that, if the plaintiff had made an examination, he would not have discovered the defect. Consequently if he was guilty of negligence in the premises, the negligence did not contribute to the production of the injury for which he complains.

But was he guilty of negligence? The claim of the defendants that he was, is based upon the following finding of the court: “It was proved to be the understanding among mill-owners and those having charge of mills and of their several departments, that it is the duty, not only of overseers and second-hands, but also of every person who is employed and directed to connect shafting with machinery, to see that every thing is in proper condition before attempting to make the connection, and if they fail to do so they are guilty of negligence.”

What have we here tending to show that it was the duty of the plaintiff to make the examination ? Can a private understanding among mill-owners and those having charge of mills, not communicated to their employees, create the duty? No such understanding had ever been communicated to the overseer of the room even, although he had been many years in the defendants’ employ; much less to the plaintiff, who had just come from the street to go into the defendants’ employment. It would seem that such understanding, even among mill-owners, must have been confined to machinery in use, requiring their employees to look out for defects caused by ordinary wear and tear, and not to new machinery just from the hand of the mill-owner. In’ relation to such, machinery it would seem that their understanding must have permitted employees to rely upon the duty of mill-owners to exercise reasonable care and to furnish safe machinery in the first instance.

There is no error in the judgment appealed from and it is therefore affirmed.

In this opinion the other judges concurred.