Coyne v. Byrne

214 Mass. 221 | Mass. | 1913

Hammond, J.

The manifest office of a “spreader” is to keep the sides of the window frame from buckling under the pressure of the brick wall in process of construction; and the defendant testified that he never knew one to be used for any other purpose.

The building was incomplete. It is natural for workmen in moving about under such circumstances to avail themselves more or less for the time being of almost any object within reach which promises the slightest aid. Even if, as the evidence for the plaintiff tended to show, a workman in passing between the outside and inside stages sometimes used a spreader as a stepping place, such a use is so far disconnected from its manifest office that the workman must be regarded as acting at his own risk. Gillette v. General Electric Co. 187 Mass. 1, and cases cited.

Moreover, the case was submitted to the jury only upon the common law counts. The spreader gave way because the fastening was weak. Both the workmen who did the fastening and O’Toole, by whom the plaintiff, as he testified, had been taught to step upon spreaders, were fellow workmen of the plaintiff. The negligence, if any there was, was that of these fellow servants, for which the defendant is not answerable. A verdict should have been ordered for the defendant in accordance with his request.

Exceptions sustained.