203 Mass. 261 | Mass. | 1909
The jury might have found that the plaintiff, while himself in the exercise of due care, was injured in consequence of the fall of the staging on which he was at work, and that this fall was caused by the breaking of one of the brackets which supported the staging and which were furnished by the defendants for that purpose. The inner part of this bracket, it might have been found, had become rotten from long use and exposure to the weather, so that it had become defective and dangerous; and the defendants might have discovered this fact by proper inspection. That is, the jury might have found that the plaintiff’s injury was due to the defendants’ negligence in supplying a defective and improper bracket for the construction of the staging upon which he was put to work. Unless he had assumed the risk of this accident, or unless it was due to the negligence of his fellow servants, the case should have been submitted to the jury.
I. It cannot be said as matter of law that the defective condition of this bracket was so obvious that the plaintiff must be charged with knowledge of it and held to have assumed the risk of any resulting accident. Hosmer testified that such a bracket would appear sound to any one looking at it. Doubtless other parts of his testimony and other evidence in the case tended to a different conclusion; but the utmost that can be said is that it was a question for the jury. And a servant assumes the risk only of obvious defects. Anderson v. Marrinan, 202 Mass. 193.
2. Mor can the defendants escape liability on the ground that they had provided a sufficient number of safe and proper brackets, and are not to be held for the negligence of a fellow servant of the plaintiff in selecting a defective one for use. There was evi
3. We have taken it for granted thus far that both defendants stand upon the same footing; and we are of opinion that the jury might have so found, although the testimony was somewhat meagre. There was evidence that the plaintiff was originally employed by Charron, but that he received his pay at first from Charron’s hand in a check signed by Deschenes, and that for his final payment he was sent by Charron to Deschenes’ office and received it there. Masse testified that both Deschenes and Charron busied themselves about the building, and gave directions as to the work to be done and the materials to be used. Masse was paid sometimes by one, sometimes by the other; the checks which he received from Charron were signed by Deschenes. The fact that Charron alone had made a contract with the owner of the house for its construction, though entitled to consideration, was not conclusive. Nor would it be material that the brackets were the individual property of Charron, if the jury found that both defendants had assumed the responsibility of furnishing proper appliances.
4. The evidence of Charron’s declarations as to his connection
.'Exceptions sustained.
