1. The ruling that the plaintiff could not recover under the first count was right. The staging by the breaking of which he was hurt was not a part of the defend
As held in Burns v. Washburn, 160 Mass. 457, and in Adasken v. Gilbert, 165 Mass. 443, a temporary staging of this kind, built and put up by the workmen themselves for use upon a particular job, “ is not within the term ‘ ways, works, or machinery,’ in the statute.” The staging as to which, in Prendible v. Connecticut River Manuf. Co. 160 Mass. 131, it was held that the jury could find it to be part of the ways, works, or machinery, was one of several permanently kept for use about the yard of a mill, and taken down and put up from time to time, and intended to be used from four days to a week at a time in each place where it was erected. The staging in the present case was of the class of appliances which in Burns v. Washburn and in Adasken v. Gilbert were held not within the statute.
2. While it cannot be said as matter of law either that the plaintiff was careless in going upon the staging, or that the danger that it would collapse was so obvious that he must be held to have taken the risk, in the opinion of a majority of the court it cannot be said, as matter of law, that the careful oversight of the work by a superintendent would not have prevented the loading of the staging with slate to such an extent as to make it dangerous. It was conceded that the defendant’s son was foreman of the job, and that he had charge of it; and, in the opinion of a majority of the court, this was enough to justify
Fxceptions sustained.