Farrell v. Eastern MacHinery Co.

Prentice, J. The defendant manufactures and installs elevators. Farrell, the plaintiff’s intestate, who was an unskilled laborer, was its servant in the installation of a freight elevator hr one of the shops of the National Wire Corporation. He worked with and under the direction and superintendence of one Maynard, another employee, who was skilled in the business, competent for the work entrusted to him, and a suitable fellow-servant. The prosecution of the work upon which they were engaged necessitated the erection and use, upon each floor of the building, of stagings *489 conveniently placed over and across the elevator well. These stagings were required for the support of the men as they were engaged in putting the machinery in position, and to be suitable it was necessary that they he strong enough to bear not only their weight, but the strain resulting from such lifting of machinery parts as was involved in the work. Farrell met his death through a fall down the well, which was occasioned by the giving way of the staging platform upon which he and Maynard were at the time standing in the act of lifting a piece of machinery into position. . This platform, which was one plank wide, consisted of two thicknesses of plank, one placed upon another, and thus resting upon the supports. The breaking of these planks so placed in superposition was the consequence of their weak and defective condition, which rendered them unfit for staging use, one of them having a knot plainly visible extending nearly across its width and through its entire thickness at the place where it broke. The trial court found, upon the facts shown, that the defendant as master failed in its duty to Farrell as its servant, and therein was negligent in a manner directly contributing to the latter’s injury in that (1) it did not use reasonable care to provide reasonably safe appliances and instrumentalities for his work, and (2) that it did not use reasonable care to provide a reasonably safe place for his work. Upon the facts the court also ruled and held that Maynard, in respect to the selection and use of the defective planks, as of all the material used in the staging and in its erection, was the defendant’s representative and vice-principal, engaged in the performance of its duty as master. The defendant contends: (1) that the court was mistaken in its conclusion last recited; (2) that the staging which fell was not, under the circumstances, a “ place ” within the meaning of the law which prescribes the master’s duty; and (8) that it owed Farrell no duty quoad the staging, save those confessedly performed, other than to use reasonable care to provide reasonably suitable and safe material for its erection. As the logical consequence of the defendant’s po *490 sition thus outlined, it claims that in the application of this rule of duty the material provided by it for the construction of said staging is not to be regarded as that which was taken to the Wire Company’s building by the direction of Maynard, but as that larger supply which the defendant kept on hand for staging construction in the room at its factory. The defendant’s position upon these points of controversy may, for the purposes of this case, be assumed without decision. We have, then, this situation. The defendant, as master, is to be charged with no dereliction in duty which arose subsequent to the time when Maynard ordered Farrell to go to the factory room where staging material was stored to obtain that which was to be used at the Wire Company’s building. Maynard’s acts from that time on are to be treated as those of a servant only, — as the fellow-servant of Farrell. The defendant’s responsibility thus becomes limited to such as may have been involved in the presence in that room of the material which was there and under the circumstances of its being there. This responsibility must of course be determined in view of the positive requirement of the master that he shall use reasonable care to provide reasonably safe appliances and instrumentalities for his servants in their work, and upon the theory which the defendant’s position assumes, that the supply of material in this factory room is to be regarded as the “ provision ” in that regard within the meaning of the law. This view of the situation, however, does not terminate the master’s duty and fulfil its requirements prior to the intervention of an act of negligence, and of the very act in which the court has found the negligence to have consisted, to wit: the provision of the defective planks in question as instrumentalities designed and fit to be used for the work for which they were used. The plank with the plainly visible knot in it extending nearly across its width and through its entire thickness was in this room. So also was the other defective and unfit plank which gave way. It is to be borne in mind that this room in question was one in which the de *491 fendant kept planks and boards “ provided and stored expressly for use in the construction of stagings or platforms when necessary in the installation of elevators.” The room did not contain a miscellaneous supply or haphazard collection of lumber. The questions which would be presented by such a condition need have no consideration here. It was the storage place for material set apart, designed and devoted by the defendant to the special use to which it was in fact put with the fatal consequences which furnish'the occasion for this suit. This segregation of material was the defendant’s act, and as our assumption involves the treatment of it as the defendant’s provision, and his only provision, of the necessary reasonably suitable material, it follows that the same fault which Maynard later committed in selecting for use in a particular case the palpably defective plank which gave way — as it might have been expected to do — was earlier committed by the defendant when it selected and set apart the same plank with its palpable defect for use generally by its servants under circumstances like those in which it was used by Maynard and Farrell. Twomey v. Swift, 163 Mass. 273. This, it will be observed, is not the case where the master has furnished a supply of appliances all free from defects known, or which ought by the exercise of due diligence to'have been known, and sufficient for the work for which they are apparently adapted, and the servant has been careless in his selection therefrom for use. It is the very different case, where some of the appliances provided are palpably defective, and for that reason distinctly unfit in their quality to perform the work which might be reasonably expected of them. In the one case the sole negligence lies in the selection for immediate use. In the other there is negligence behind the selection for use, however negligent that selection itself may have been, to wit: negligence in the initial provision of the article as one suitable for the use. Neither is this a case where appliances have been put to a use or strain which was unusual or not to have been reasonably anticipated by the master. The situation which caused the break was the natural and normal one incident *492 to the work for which the planks were designed, and to the use and strain which must have been foreseen when they were provided. But it is said that Maynard, as a skilled and competent man provided by the defendant, ought in the exercise of reasonable care on his part to have detected the defective planks and discarded them, and that the accident was therefore attributable to his fault and not chargeable to the defendant. In so far as this contention involves the assertion of any benefit to the defendant from the fact of its having employed in Maynard a man competent to select suitable material and build a suitable staging, it runs counter to the defendant’s main contention that Maynard was in no respect its representative doing its duty as master. In so far as it asserts immunity from responsibility for the reason that reasonable care on the part of Maynard would have prevented any unfortunate consequence accruing to Farrell from its negligent act, it is without legal justification. The intervention of negligence on Maynard’s part would not suffice to absolve the defendant from liability for consequences of which its failure to exercise reasonable care was an efficient cause. Ashborn v. Waterbury, 70 Conn. 551; Carstesen v. Stratford, 67 id. 428; Ring v. Cohoes, 77 N. Y. 83; Louisville, N . A. & C. Ry. Co. v. Lucas, 119 Ind. 583; Carterville v. Cook, 129 Ill. 152; Ricker v. Freeman, 50 N. H. 420, 432; Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700. It is claimed that the defendant is saved from responsibility because the Wire Company had in its building, convenient to the place where the elevator was being installed, ample material suitable for the construction of the staging, and that permission to use this material was, prior to the beginning of the defendant’s work of installation, obtained by the defendant through Maynard. If it be assumed that this lumber belonging to the Wire Company was by the course pursued provided by the defendant for its work and workers within the meaning of the law, the result is none other than that the defendant’s supply of good material which might have been used was larger than it otherwise *493 would have been. The presence of the knotty and unfit plank among the material provided, due to the defendant’s act, would still remain, and its responsibility, therefore, continue. This feature of the situation, therefore, adds nothing of significance to that which we have assumed to exist in the room at the defendant’s factory. We have assumed that there was there a sufficient supply of that which was suitable for use which might have been taken and used by Maynard. Whether this supply was greater or less can be of no legal consequence. A consideration of most of the reasons of appeal is either embraced within or obviated by the view of the case expressed. One error assigned, is the overruling of the defendant’s claims of law stated in the finding as having been made upon the trial. These claims were eighteen in number and widely different in character. The assignment of error was therefore not specific, as required by statute, and need not be considered. General Statutes, § 802. The reasons for the rule are apparent and weighty, and it should be observed in both letter and spirit. The letter requires particularity and definiteness. The spirit forbids assignments which are frivolous, unnecessarily repetitious or multiplied, or not made in good faith. A proper compliance with the rule, therefore, permits an appellant to assign such errors of law as are in good faith claimed by him to have been committed and of Avhich he has a reasonable expectation that he may wish to take advantage, and none other, and requires that these errors be assigned individually and not in gross. Our enforcement of the requirement of the statute in this case, however, deprives the defendant of the benefit of only one claim of error, and that is the minor and unfounded one that the complaint is not one Avhich will support a judgment for more than the nominal damages incident to the default, by reason of its failure to aver in express terms, the fact found, that the intestate did not have equal means of knowledge vyith the defendant of the unsafe condition. *494 Two objections are made to tbe court’s rulings upon the admission of evidence. The defendant could not have been harmed by either. Exceptions to the finding were taken and are made the basis of reasons of appeal. These all relate to matters which our conclusions and the reasons therefor either render immaterial, or justify. There is no error. In this opinion the other judges concurred.