McKinnon v. Norcross

Knowlton, J. It was the duty of the defendants to procure competent and proper workmen in the business in which the plaintiff was engaged, and to provide for them suitable tools and appliances, so far as that could be done by the exercise of ordinary care and diligence. The plaintiff affirms, and the defendants deny, that the injury to the plaintiff resulted from neglect of this duty. There was no evidence that the foreman in charge of the work was not a proper person to be intrusted with it. The plaintiff testified that he had known him a long time as a foreman, and had worked under him all the summer before the accident, and had found him always careful and prudent in his work and in his superintendence of men. There was no evidence that the other workmen upon the derrick needed to have special skill or experience, if the foreman was competent. Moreover, it appeared that one of them had worked around derricks more or less for five years. The jury would not have been warranted in finding negligence of the defendants in the selection of their servants. There was evidence from experts tending to show that a rope fastened as the manilla rope was might have slipped, and also [537] that it might have been cut, and so have broken, where it was fastened around the iron girder. But the testimony was undisputed that this rope did not slip, and that the fastening was in the same condition after the accident as before. It was also proved that the rope did not break at or near the girder, but it parted at a point between the girder and the wire rope, about two feet or two feet and a half from the clamp where it was fastened to the wire rope. If there was negligence in the method adopted for moving the derrick, it was negligence of a fellow servant of the plaintiff, for which the defendants are not liable. The manilla rope was the only part of the materials or appliances which had any causal relation to the accident. There was evidence that tarred yarn should have been provided for use in fastening the manilla rope to the wire rope to prevent slipping; but that evidence was immaterial in this case, for the rope did not slip. It was proved, and not disputed, that everything else which could properly have been used in the work was supplied by the defendants. There was no testimony that the rope which broke was not strong. If it was in fact unsound, a coil of new rope was there ready for use. There was no testimony nor suggestion that the new rope was not of proper size and quality. There was evidence that, instead of a single rope made fast at both ends, a tackle of some kind should have been used, by which the rope could have been slackened and the strain diminished. The defendants had made ample provision for this. There was one tackle there in the locker with the ropes reeved into the blocks, and, if more were needed, other blocks were there with a plenty of new rope ready to be reeved into them. Properly to use pulleys, blocks, rópes, and other ordinary tools and appliances which have been furnished by a master to the workmen employed upon a derrick, is a part of the duty of the workmen. It is incidental to the management and use of the derrick. In working with a derrick, the foreman and his assistants are fellow servants; and the master is not responsible to any one of them for the negligence of any other in the use of the materials and implements' which the master has supplied. Kelley v. Norcross, 121 Mass. 508. Colton v. Richards, 123 Mass. 484. McDermott v. Boston, 133 Mass. 349. Johnson v. Boston Tow-Boat Co. 135 Mass. 209. Moynihan v. Hills Co. [538] 146 Mass. 586. Daley v. Boston & Albany Railroad, 147 Mass. 101. There was no evidence of negligence on the part of the defendants. Evidence of the conversation with the foreman, in which he told how the accident happened, was rightly excluded. Williamson v. Cambridge Railroad, 144 Mass. 148. Judgment for the defendants.