Tierney v. Merchants Steam Lighter Co.

Hammond, J. At the time of the accident the barge was being used in the business of the defendant corporation and was under its exclusive control. The defendant was therefore under an obligation to use due care to see that in using it there was no danger to a careful employee; and that is so whether the barge was owned or borrowed by the defendant. Spaulding v. Flynt Granite Co. 159 Mass. 587. Ladd v. New York, New Haven, & Hartford Railroad, 193 Mass. 359, and cases cited. The evidence warranted findings that the rope which parted was defective and unsafe for the use for which it was intended; that a proper inspection on the part of the defendant would have disclosed the defect; that such inspection was not made by the defendant; that the plaintiff however had the right to assume that it had been made and to act accordingly; that the defect was not obvious to the plaintiff, and that in using the rope as he did he did not assume the risk; that he neither knew of nor had any reason to suspect the defect, and that, while in the exercise of due care he was using the rope, he was injured by reason of the negligence of the defendant. No citations are needed to show that such findings would entitle the plaintiff to a verdict. The case is clearly distinguishable from the class of cases of which Roughan v. Boston & Lockport Block Co. 161 Mass. 24, cited by the defendant, is a type. The judge rightly refused to rule as requested by the defendant. The exception taken to a portion of the charge to the jury is not pressed in the brief of the defendant, and in view of its nature we regard it as waived. The defendant complains of the amount of the verdict. But with that question this court cannot deal. Exceptions overruled.