McNulty v. Power

203 Mass. 320 | Mass. | 1909

Rugg, J.

The plaintiff and one fellow workman, both experienced carpenters, with thorough knowledge of the qualities of various kinds of wood ordinarily used in building, were constructing a small one story wooden structure. The employer, the defendant, furnished a number of native pine boards exactly sufficient for finishing. During the plaintiff’s temporary absence, his fellow employee, doing his work in his own way, used one of these boards for a corner board. It projected somewhat above the body of the building and broke by reason of a knot, while the plaintiff was supporting himself upon it in doing his work. If there was any negligence, it was that of his fellow servant in using for this place a knotty board of such character that it was likely to break. There is nothing to show that he might not have found a safe one, even though the total number supplied did not exceed the needs of construction. Upon familiar principles the plaintiff cannot recover under these circumstances.

There was no error in the exclusion of evidence. The nature of native white pine wood was within the knowledge of the plaintiff, and the particular quality of that used on this building was before his eyes. Therefore, whether it was commonly used for finish was of no consequence. It was being so used in fact, and the plaintiff who had himself been a contracting builder made no objection to or criticism of it for this purpose. Whether it was necessary for the plaintiff to take hold of the board in doing his work was for the jury to determine as a matter of common sense, after all the attendant conditions were described to them. It was a subject as to which opinion testimony might properly be excluded.

Exceptions overruled.