Reagan v. Boston Electric Light Co.

167 Mass. 406 | Mass. | 1897

Field, C. J.

It is somewhat doubtful whether there was sufficient evidence of due care on the part of the plaintiff, but on the whole we think that this question was for the jury. Illingsworth v. Boston Electric Light Co. 161 Mass. 583. Griffin v. United Electric Light Co. 164 Mass. 492.

There was abundant evidence that the plaintiff was on the roof for the purpose of doing work for the owners of the building. He was in the employ of Smith and Howard, who were employed by one McLaughlin, who had a contract with the owners to make alterations and repairs upon the building, including the roof; if the work the plaintiff was doing was not within the contract, there was evidence that the agent of the owners had requested McLaughlin to have this work done. This was evidence that the plaintiff was rightfully on the roof by an invitation which came mediately from the owners, and was engaged in work on the building for their benefit and at their request. Griffin v. United Electric Light Co., ubi supra.

It is contended by the defendant, that the effect of the contract made with the owners of the building by the Brush Electric Lighting Company, to whose obligations the defendant had succeeded, was such that the defendant was bound to repair the roof. If this be so, still the owners of the building could repair the roof if they chose. The defendant was not the lessee or the occupant of the roof. It had the right undoubtedly, while the contract continued in force, to enter upon the roof for the purpose of doing everything which it was required to do by the contract, but this right did not exclude the owners from making such repairs upon the roof as they thought necessary. Whether the repair of the gutter which the plaintiff was engaged in making was a repair of the roof within the meaning of the contract, need not be determined. If it be so regarded, still the charge of the presiding justice upon the effect of the contract upon the duty of the defendant towards the plaintiff was sufficiently favorable to the defendant.

The court admitted, against the objection of the defendant, a bill for work done on the building, rendered by McLaughlin to the agent of the owners, and paid by the owners or their agent. This bill contained items of work done by the plaintiff and others, employees of Smith and Howard, and included the work of repairing the gutter which the plaintiff was doing when be was injured. The ground of the defendant’s objection is stated in the exceptions to be “ that no connection bad been shown, or was offered to be shown, between Hezekiah McLaughlin and Smith and Howard, the plaintiff’s employers, or the plaintiff.” But the testimony of Fessenden, the agent of the owners, was evidence that these men were employed to repair the edge of the roof at his request. Exceptions overruled.