180 Mass. 183 | Mass. | 1901
In this case, the plaintiff was thrown to the ground from a staging on which he was standing while painting the ceiling of the defendant’s library at Andover. The cause of the accident was the giving way of a ledger-board which supported the planks of the staging on 'which he was standing at the time.
The plaintiff was in the employ of one Rowe, a painter in Andover, who had been previously employed from time to time by the defendant corporation to paint its buildings. One Grant, who was the superintendent of the defendant’s buildings at Andover, asked Rowe to do the interior decoration of the library building; and thereupon he went to work and “although he knew that a staging would be required he did not say anything about one to Grant until he, Rowe, was ready to go to work.” Rowe testified, that when he was ready to go to work, he said to Grant, “ I will have to have a carpenter to build the scaffold; ‘Well,’ he says, ‘My carpenters are busy over to the Pike barn and you will have to build that scaffold yourself.’ ” Rowe then asked what he was going to do for lumber, and Grant told him that there was “plenty of stuff out back of the barn you can use, and there is some over in the woods.” Thereupon Rowe, with two of his men, picked out from the pile back of the barn, what they ■ needed in addition to the lumber, which Rowe furnished himself; Rowe furnished the planks on which the men using the staging stood. There was evidence that the ledger-board in question was a hemlock board, planed on one side, some seven or eight feet in length, five inches wide, and seven eighths of an inch thick, and that hemlock is not suitable wood to use for ledger-boards. It further appeared that in doing this work Rowe “ took what paint was needed from the defendant corporation’s storehouse. . . . He had at times as many as thirty-five men at work at once on this job; that time cards were furnished him by Grant? that he filled them out, one for each man, and handed them in each day; that he, Rowe, hired, discharged, and paid his men, including Callahan; that the defendant corporation gave no directions to him in re
The plaintiff’s first contention is that the jury could have found for him on the principle of Mulchey v. Methodist Religious Society, 125 Mass. 487; but there was no evidence in this case, on which the jury could have found that the defendant invited the plaintiff to use a staging, which was to be furnished by it for use in painting the library ceilings When Rowe was first asked to do the painting in question, nothing was said as to who should furnish the scaffold or staging. When Rowe was ready to go to work, he asked Grant to furnish it, but Grant refused to do so, saying that his carpenters were busy; thereupon Rowe put it up, using some boards belonging to the defendant for the uprights and the ledger-boards, and furnishing himself the planks on which the men were to stand. There was no evidence on which the jury were justified in finding that the defendant agreed to furnish the staging, or that the defendant did furnish it, or that it invited the plaintiff to use it when it was complete.
This also disposes of the plaintiff’s second contention, namely, that he has introduced evidence which brings this case within Toomey v. Donovan, 158 Mass. 232. In that case, there was direct evidence that it was the duty of the defendant to repair the machines in the room where the plaintiff worked, including the machine in question, which was out of repair and which caused the accident because it was out of repair. As we have already said, there was no evidence here on which the jury could have found that the defendant undertook to furnish the staging used by the plaintiff.
The plaintiff’s nest contention is that the jury could have found for him on the principle on which the plaintiff was entitled to recover at common law in Twomey v. Swift, 163 Mass. 273.
The plaintiff also relies on McIntyre v. Boston & Maine Railroad, 163 Mass. 189. In that case, it was the duty of the defendant to furnish suitable stakes for its flat cars. When such a
Exceptions overruled.