200 Mass. 29 | Mass. | 1908
This is an action for personal injuries caused by the giving way of a staging on which the plaintiff was at work. The plaintiff was a servant of the defendants, employed in putting new metal sheathing on the outside of a building known as the Russell building, on Suffolk Street in Holyoke. This building was thirty feet high in front, that is, on Suffolk Street, with a roof sloping down toward the back; at the back it was twenty-one to twenty-three feet high. There was a conflict as to the depth of the building, the plaintiff testifying that it was thirty, and one of the defendants that it was ninety, feet deep.
Next to the Russell building was a low wooden shed, also facing on Suffolk Street, which extended back about the same length as the Russell building. This shed was from twelve to eighteen feet high in front. Its roof also sloped down toward the back, and at the back it was a foot lower than at the front. There was some evidence that there was an addition in the rear which was eight feet highér. But that is not material.
The space between the Russell building and this shed was put by the plaintiff at eighteen inches, and by one of the defendants at twenty-one inches.
The work which the defendants had undertaken to do consisted in stripping off old and putting new metal sheathing on the outside of the Russell building. This metal sheathing came in pieces four feet long and two feet four inches wide.
The plaintiff testified in his own behalf, and called as a witness one Bramham, who was still in the defendants’ employ.
The story told by Bramham was that while stripping off the old and putting on the new metal sheathing between the two buildings below the roof of the shed, the defendants’ workmen had constructed for themselves a staging of the following description : Two sets of cleats were nailed to each building. On these sets of cleats cross pieces were laid. On these two sets of cross pieces a twelve foot ladder was placed, and on the ladder boards were laid, on which the men stood while at their work.
The accident happened about half past four on a Wednesday afternoon, and was caused by one of these 2x3 boards splitting lengthwise; that is to say, the board in question had been nailed on the Russell building lengthwise, up and down; it had split in two, the two halves had dropped off, one on each side of the nails, and had let down that end of the staging. By Bramham’s story the two 2x3 boards for cleats were procured at the Smith building that day. In addition they were by his testimony procured on the employees’ own motion and without the knowledge of the defendants. Bramham testified that they got the 2x3 boards, in place of using the seven eighths boards used before, because they would give better security on the staging, and because the seven eighths boards which had been in use “ wouldn’t have been sufficient.”
The plaintiff’s testimony was that these 2x3 boards had been procured some two weeks before the day of the accident, when the work on the Russell building began. He testified that one afternoon the defendant Carmody told him (the plaintiff) to go with Bramham to work on the Russell building; that Bramham then said that they would have to have a staging between the two buildings and Carmody told them to “ Go and pick it out. Find out if there is anything down cellar ”; that they went to the cellar and found nothing but inch boards, “that came off packing cases, probably, sent or shipped with
The defendants’ contention is that no matter which of these two stories was believed by the jury, they are not liable. Their contention is that although they were bound to furnish materials for the construction of the staging which in the case at bar confessedly was left to be constructed by the workmen, they were not in default in that respect here; for on the plaintiff’s own story they had told the plaintiff and Bramham to see if there was anything in the cellar which would do, and the plaintiff and Bramham, in place of reporting that there was not, as they were called upon to do under those circumstances, procured for themselves and without the defendants’ knowledge the defective board in question. They also contend that, if Bramham’s story was believed, the conclusion was even strqpger that the plaintiff and Bramham had chosen to provide themselves with materials in place of having the defendants furnish them.
We do not find it necessary to consider whether the defendants are correct in this contention as to the effect of Carmody’s direction to “ pick it out ” and “ find out if there is anything in the cellar ”; there are some facts which we have not found it necessary to state which might have a bearing on that. For we are of opinion that, if it be assumed that Bramham and the plaintiff were under an obligation to report to Carmody that there was no fit material in the cellar, the jury were warranted in finding that the defendants through Sullivan afterwards adopted the 2x3 boards brought from the Smith building as their material for this staging.
The plaintiff testified that at noon on the day of the accident the work had reached the point where it could not be done standing on the roof of the shed, and that before going back to work in the afternoon of that day he with Bramham had a talk
For the staging to be constructed as Bramham suggested it was the defendants’ duty to furnish proper materials under the settled rule in this connection. See for example Brady v. Norcross, 172 Mass. 331; Thompson v. Worcester, 184 Mass. 354.
The jury were warranted in finding that the 2x3 boards, one of which caused the accident now in question, were then nailed on the Russel building, and that Sullivan, by adopting Bramham’s suggestion and not offering other material for use in making the cleats which Bramham’s suggestion required, authorized the use of these boards and so made them their own for the purpose of this staging.
The defendants have also contended that there was no evidence that the 2x3 board which split was unsuitable. In support of this contention they urge that on the evidence it was no more likely that the split came from the wood being unsuitable than from its having been nailed and renailed on to the Russell building some six times before the time in question. But the jury were warranted in finding that the board was adopted by the defendants as their material after it had been renailed these six times; and we are of opinion that the fact that such a board split under the circumstances under which it split in the case at bar is evidence from which the jury were warranted
The question of evidence raised by the defendants not having been argued must be treated as waived, and need not even be stated.
Exceptions overruled.