Arkerson v. Dennison

117 Mass. 407 | Mass. | 1875

Wells, J.

The plaintiff was injured by the falling of a staging, upon which he was directed to go by the defendant, for the prosecution of the work for which he was employed. The staging had been erected before the plaintiff entered the employment of the defendant. The evidence tended to show that it was improperly constructed, and insecure, either by reason of unsuitable material used, or by reason of neglect to fasten it together sufficiently by nailing, or for both or other reasons. That it was insecure and improperly constructed in some way, was sufficiently apparent from the account given of the manner of its fall.

The plaintiff contended, that “ the defendant was bound to furnish a safe and proper staging for the plaintiff to work on ; ” that “ the defendant knew, or ought to have known, that this staging was unsafe;” and that “there was evidence of the defendant’s negligence ” in this respect. The court restricted the plaintiff’s right of recovery to the ground of negligence “ in the selection and employment of competent and suitable men and in furnishing suitable lumber to build the staging.” In this, as well as in the ruling that the plaintiff could not maintain the action upon the evidence, we are of opinion that there was error.

The positions of the plaintiff were founded upon the law, applicable to the relations which a workman sustains to his employer and to his fellow workmen, as settled by the judicial decisions of this Commonwealth. Gilman v. Eastern Railroad, 10 Allen, 233; 13 Allen, 433. Snow v. Housatonic Railroad, 8 Allen, 441. Coombs v. New Bedford Cordage Co. 102 Mass. 572. Huddleston v. Lowell Machine Shop, 106 Mass. 282. Ford v. Fitchburg Railroad, 110 Mass. 240.

On the one hand, the workman takes upon himself the risks ordinarily incident to the employment he engages in; and those include the results of negligence on the part of others employed in the same service. On the other hand, “ the master is bound to use ordinary care in providing suitable structures and engines and proper servants to carry on his business, and is liable ” for any negligence in this respect. “ If he knows, or in the exercise of due care might have known, that his servants are incompetent or his structures or engines insufficient, either at the time of procuring them, or at any subsequent time, he fails in his duty.” Gilman v. Eastern Railroad, 13 Allen, 440.

Whether a particular structure or appliance is one for which the master is responsible to his servant may depend upon circumstances, including the nature and scope of the employment of those engaged in its preparation and use. It may depend upon the question whether the direction and charge of the work is confided to the workmen or some of them, or retained by the employer or left unprovided for. If the employer directs his workmen to do certain work, leaving it to them to provide the structures and appliances required for its prosecution, he may be responsible only for care in selection of the men and material assigned for it. But if he simply employs them to work under his direction, giving them no charge or responsibility in regard to the result to be accomplished, or the appliances to be used, that responsibility remains with him. The negligence of fellow workmen, for which the master is held to be exempt from responsibility, is negligence in respect to that which the workmen undertook or" were set to do. When the preparation of the appliances is neither intrusted to nor assumed by them, the master may be held guilty of negligence, if defective appliances are furnished, even though the workmen themselves are employed in the preparation of them. In such case, negligence appearing, it is a question of fact for the jury whether that negligence was in respect of what was done or undertaken by the fellow-workmen, or was the negligence of the master.

The ruling at the trial would not permit the presentation of the ease in this aspect. The defendant’s witness, Mehan, in cross. examination, testified: “ I worked by the day, while building the staging. The defendant was there almost every, if not every day. There was no regular boss. Presume the defendant superintended the work. I did n’t, though I was paid more than others.” The other two persons who worked upon the staging did not appear to have any charge of the work. It would have been competent for the jury to find that the defendant had not intrusted the preparation of the staging to any one else, and therefore that he retained the charge and direction of it himself, and was bound to exercise some degree of care in regard to it, which he neglected to do. The statement of the report, that “ it was not contended that the staging was built under the immediate direct personal supervision of the defendant,” is consistent with neglect on his part to exercise that supervision which, under the circumstances, he ought to have done, and for which, if the jury should find that it was culpable neglect, he might be held liable to the plaintiff. We think this was a question of fact which should have been submitted to the jury; as was also the question whether the defendant knew or ought to have known, because, if he had exercised due care,, he would have known, that the staging was unsafe. The case must therefore stand for trial.

Verdict set aside.