M'Lauchlin v. Lomas

Frost, J.
delivered the opinion of the Court.

The jury were correctly instructed in the law applicable to the case ; and the appeal is from the verdict, on the evidence. The questions of fact, on which the verdict depends, are whether John was hired to the defendants as a house carpenter ; did the accident, which caused his death, happen in the course of his employment as a house carpenter? and pertinent to this, is a circular saw, propelled by steam, a proper implement of a carpenter’s trade, or of so dangerous a kind that the defendant should be made liable for any injury it might do ? and if both these last inquiries be decided against the defendant, did the plaintiff know of the use of the circular saw by the defendant, in his workshop, so that the knowledge and consent of the defendant to the use of it by John, may be presumed ?

It is to be inferred from the evidence, that John was hired as a house carpenter. It is proved that the defendants were house carpenters and joiners. They had, in their workshop, circular saws driven by steam. John was put to all kinds of carpenter’s work. Every hand got out his own stuff; and John, as well as the others, got out his stuff at the circular saw. He was sawing laths for a house defendants were building, when he received the injury. John thus is proved to have been employed as a house carpenter. The next question, and that most strenuously argued against the verdict, is whether a circular saw is a fit implement of a carpenter's trade. There is no evidence that it differs from a common circular saw, and no inquiry having been made concerning it, justifies the inference that its fixture and use were well known to the jury. What is a proper implement of a carpenter’s trade, is certainly not a question of law, and of course the jury were alone competent to decide. In a large and the most thriving section of our country, circular saws are in almost universal use, by mechanics of every kind; and when the superstitious dread of steam shall have yielded to experience of its great utility and familiarity with its use, no master workman, in our own State, will carry on a trade without its valuable aid in propelling circular saws and other implements of his craft. It cannot be questioned that a saw is the proper tool of a carpenter, indispensable in every workshop. The objection to a circular saw, driven by steam, must consist in the danger attending its use. Four mechanics, who were familiar with its use, testified that it. was not attended with danger. Three, who did not use it, indulged apprehensions. Kelso and Frey, who work at defendants’s shop, state that all the hands, including apprentices, work at the saw, and the accident to John is .the only one which has ever happened. Boatwright puts any of his hands at it, and no accident, except of a trivial character, has occurred.— *90These facts outweigh the opinions of the witnesses who háve t not used it. All say that it requires care. That is required in the use of all edge tools. This is evidence enough to support the verdict, in finding that the same is not dangerous } or not so dangerous as to make the defendants liable for an injury which may occur to a hired carpenter in the use of it. But even if it were a dangerous implement, there is evidence by which the conclusion may be supported, that the plaintiff knew of its use by the defendants’s workmen, and thereby consented to the use of it by John. The case has been argued for the appellant, as if John was put to work the saw. If he had been set apart to that employment, that would have been a breach of the implied contract of hire. But the proof is uncontradicted that he was employed in all kinds of carpenter’s work, and used the saw only when a saw was necessary in the performance of his work.

In the opinion of a majority of the Court, the verdict is well supported by the evidence, and the motion is refused.

Evans, J. and Wirhers, J. concurred.

Richardson, J.
dissenting.

The question is whether a hired house carpenter, when employed at the circular saw of a steam mill is, thereby, placed within or without the employment, trade or usage of such carpenters. If within, the verdict is right; if without, it is to be set aside, If John Howell had been put in a common saw mill; which is not a perilous vocation ; hone could question that such use of him would have been at the risk of his hirer; not on account of the risk, but the change of employment in which the loss happened, If John had been employed generally, in the defendants’s steam mill, the hirer would, at his own risk, have so employed John: because such new vocation would have been out of the employment, trade or usage of a house carpenter. No one can doubt that such liability would have been the law of that case.— Again, none can question that, by putting John at the circular saw, he was destroyed. But if so employed, it Was in the mill; and we can make no distinction between the full and partial employment. This constitutes the whole case.

Por, I presume, it cannot be supposed that by simply passing along the street, M’Lanchlin assented to all that his carpenters were or might be employed at, within the shop and steam mill. This would be a wild assumption; and would justify the defendants, if his boiler were to burst and blow up M’Lauchlin’s three other carpenters ; when employed in some harmless part of the machinery. Were such a catastrophe to happen, the question would be as it is now — at whose risk, or for whose profit, was the steam employed ?— And by whom were the carpenters brought to this addi*91tional vocation of attending to any of the steam operations 1 The error lies in supposing that, unless this new vocation dangerous, the hirer is justifiable. The entire evidence seemed to make up this issue — was the use of the circular saw dangerous or not 1 Whereas the law is as follows : “ As to the use of the thing hired — there is on the part of the hirer, an implied obligation; not only to use the thing with due care and moderation, but not to apply it to any other use than that for which it is hired. Thus, if a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden. If a carriage and horses are hired for a journey to Boston, the hirer has no right to go with them on a journey to New York. So, they are hired for a week, he has no right to use them for a month. And, if the thing is used for different purposes from that which was intended by the parties, or in a different mer, or for a longer period, the hirer is not only responsible for all damages, but if a loss occurs, although by inevitable casualty, he will be responsible therefor. In short, such misuser is deemed a conversion of the property, for which hirer is deemed responsible.”

onBail ments,0^^ Kent, 456; 01lPa’^ W-5 Mass.’®.. 104; i00”;?" ^1’ 47.'^ Mill, 43i.’
Such is the undisputed law of bailments by hiring. Now, is it not plain, in the language of the appeal, that the jury have given a verdict contrary to such law ? They clearly misunderstood what Hobart calls “ the point and sense of law.” To use his quaint figure, they have left the kernel to take up with the shell.

The strict legal question is — was not the employment of a carpenter to manage a saw, propelled by steam power, a new faculty and vocation to a mechanic who is taught only to propel his own saw 7 But instead of deciding this question, the verdict amounts to this — that there is no great danger in this particular part of the very complex steam saw mill. And it is conceded that John was employed in this very part of the mill; but this was a change of John’s vocation, and caused his death. This is the point and sense of the law.— Now then, I ask, unless the hirer pay for the loss, what becomes of his liability, so plainly laid down by the law, for any change in the employment ? It is not enough to answer, it was a case for the jury. This Court is the guardian of the law; and it is not to be so frittered away. Here, permit me to observe, that proper judicial respect for verdicts, consists : first, in allowing to juries all competent evidence without pre-judging its weight — because all the evidence is for the jury; and secondly, in supporting such verdicts, on facts, as do not mistake or infract the law. But when they do, it is a dirty to order a new trial without prejudice, in order to preserve the law, together with the true useful agency and great value of such trials. We would have the kernel, not *92merely the shell of the law and of jury trial too. In a word, tjje just¿ce 0f a jury must be like all judicial justice, the dictate of the laws of the land — and not merely of some sup-p0se(j morai system, or fitness adopted for the occasion.— Such liberties tend greatly to degrade the law, pervert its justice, and weaken public confidence in jury trials. This case ought therefore to be reconsidered, as one in which the law, as it is, was clearly misconceived by the jury. We have several appeals to dismiss as mere verdicts upon evidence, which will illustrate the distinction between such verdicts, and verdicts that depart from settled law.

O’Neall, J. concurred.