Opinion
January 10, 1905.
PRESENT: Tillinghast, C.J., Douglas and Dubois, JJ.
(1) Master and Servant. Proper Appliances. Where in the course of employment it is necessary to use certain appliances it is the duty of the master to furnish reasonably safe appliances to do the work; and if the master furnishes suitable appliances of different sizes and weights adapted to the work, its duty is discharged, and the use and application is the duty of the servant; so that, where the servant employs appliances unfit as regards size or weight, the negligence is that of fellow-servants, consisting in the use attempted to be made of the appliance and not in the appliance itself.
(2) Master and Servant. Proper Appliances. It is the duty of a master to furnish a sufficient number of men to do the work properly with the appliances at hand, but it is not bound to anticipate and furnish such additional number of men as would be required to perform the work in consequence of the improper and unworkmanlike manner of using the appliances furnished.
TRESPASS ON THE CASE for negligence. Heard on demurrer to declaration, and sustained.
Hugh J. Carroll, for plaintiff.
Comstock Gardner and William W. Moss, for defendant.
This is an action of trespass on the case for negligence.
The substance of the first count in the plaintiff's declaration is that the defendant was guilty of negligence in furnishing a roller of insufficient size and weight to be used in unloading certain heavy timbers from a freight car, and also in failing to furnish a sufficient force of men to do said work.
It alleges that rollers were supplied by the defendant for the purpose aforesaid, and that one of them which was being used at the time of the accident slipped, or was forced from under the timber which was being moved, whereby the plaintiff was injured.
The second count charges, in substance, that, by reason of the negligence of the defendant and the plaintiff's fellow-servants, a roller which was provided by the defendant, and which was under the timber that was being unloaded, slipped and was forced from under said timber by reason of its being too small and too light, and that then the plaintiff's colaborers were unable, being insufficient in number, to control the lumber, and they allowed it to fall upon the plaintiff's toe, whereby he was injured, c.
To this declaration, and to each of said counts, the defendant demurs upon the grounds that it appears therefrom that the risk incurred by the plaintiff was an obvious one, and also that it was one which was incident to his employment.
We think the demurrer should be sustained.
Undoubtedly it is the duty of an employer of laborers to furnish a reasonably safe place for them to work in and about, and reasonably safe tools, appliances, and implements for them to use in their work, and also to furnish a sufficient number of men to do the required work. The plaintiff, however, alleges no unsafety in the place where the work was being performed, but bases the negligence complained of upon the furnishing of a roller which was insufficient in size and weight for the work imposed upon it, and in providing an insufficient number of men to control the timber when the roller slipped or was forced from under the timber. If it was necessary to use rollers, it was the duty of the defendant to furnish reasonably safe rollers to do the work; and if the defendant furnished suitable rollers of different sizes and weights adapted to the work of unloading timber, its duty in this regard was discharged. Laporte v. Cook, 21 R.I. p. 158. If so furnished the use and application is the duty of the workmen, and their failure to use them is the negligence of fellow-servants. Laporte v. Cook, 22 R.I. 554.
The plaintiff alleges in the first count of his declaration that it was necessary to roll the timber on rollers supplied by the defendant, not simply on one roller; and as no complaint is made against the other rollers, it may be inferred that they were suitable and sufficient, both in size and weight. If a small and light roller was improperly used in connection with others that were appropriate, such use, if negligent, was the negligence of a fellow servant. There is no averment that the roller complained of was defective in and of itself; and for all that appears in the declaration it was a perfect roller in size, shape, and weight, but unsuitable for the work attempted to be imposed upon it. To use a roller so small and light as to be manifestly unfit for the purpose is negligent, but the negligence consists in the use attempted to be made of it, and the fault is not in the roller or its owner.
It was the duty of the master to furnish a sufficient number of men to perform the work in a workmanlike manner. It was not its duty, however, to furnish men enough to do the work without rollers, if it could be done properly with rollers and a less number of men. If it furnished men enough to do the work property with rollers, it fulfilled the duty it owed to the plaintiff in this respect. The defendant was not bound to anticipate that the work would be done in such an unworkmanlike manner as to cause a roller to slip or to be forced out from under the timber, and consequently was not bound to supply men enough to support and control the same in such circumstances.
We think the accident of which the plaintiff was the victim, as set forth in the declaration, was the result of risks and dangers incident to the work in which he was engaged, and were therefore assumed by him.
The demurrer is sustained, and case remitted to the Common Pleas Division for further proceedings.