[Syllabus Material]
[Syllabus Material]
Middlesex. Tort for personal injuries caused by the fall of a
staging upon which the plaintiff was at work in the
employment of the defendant. Trial in this court, before
Ames, J., who, after verdict, reported the case for the
consideration of the full court, in substance as follows:
The
plaintiff testified: "In July, 1873, I was employed by
the defendant, as a bricklayer, to work by the day on a
building in Cambridgeport. He set me to work on the third
story on the west side, filling up the inside brickwork, and
directed me, when I had finished that side, to go over to the
east side to do the same work there, on a staging already
built. Having finished on the west side, I, in accordance
with these directions, went on July 22 to the east side
through a third story window, upon the staging there erected,
and went to work laying bricks. Went out this way because the
ladder from the outside had not yet been put up. The
defendant was there on the ground about the building, giving
directions generally about the work. Soon after a ladder was
put up, and I called for mortar. The hod-carrier brought some
up, and emptied it into the tub. He then turned to go down,
when there was a crash, and the scaffold broke and fell, and
Bennett, who was at work with me, the hod-carrier and I were
thrown to the ground. I was stunned and very badly hurt, my
leg being broken. I had no part in building this staging,
which was built before I began to work for the defendant. I
did not examine it at all before going on it, as I supposed
that it was safe, and could not have examined it unless I had
taken up the boards. It was about thirty-two feet high. I saw
nothing to show that it was unsafe. When it fell, there was
not over the weight of ten bricks upon it, and part of two
tubs of mortar, besides Bennett, the hod-carrier and myself.
The ledger board, which is a board nailed to the outer posts,
and running parallel with the building, used as a support for
the cross-boards, on which the planks rest, had broken in
two. This ledger was cross-grained, and had split with the
grain. It was much too small and thin for such a place. The
staging was about twenty-one feet long." Cross-examined:
"After I fell, looked up and saw ledger broken. The
hod-carrier brought but a small hod full, and put it down
easy. A man standing on the ground and looking up could not
tell, on account of the distance, whether it was safe or not.
A mason generally takes it for granted that the staging is
safe, and if he tried to examine, he would be apt to be
discharged by his employer."
George
Dudley, a carpenter, testified for the plaintiff: "I saw
Arkerson after the fall; helped put him into the wagon. I
looked up at the staging, and saw the ledger broken in two.
The ledger was nailed on the outside of the posts, and when
this gave way it let the whole staging down. It was built of
spruce or hemlock, six or eight inches wide; split ragged
across; should not consider the scaffold safe to go on it
myself." Cross-examined: "I think a nail gave way.
If the hod-carrier had thrown the mortar down violently, it
might have started the nails. I only examined it from the
ground."
Albert
Rollins, a mason and bricklayer, testified for the plaintiff:
"I have built stagings; saw posts standing and ledger
broken. It was cross-grained. Split aslant, one and a half to
two feet from the middle. I should not think the ledger was a
proper one to be put up. A staging ought to be able to hold
from one to three tons, and ought to hold even if the
hod-carrier dumped the mortar down violently. The lumber here
was spruce or hemlock. This kind of lumber, exposed to the
weather, readily splits with the grain. It was not a safe
staging." Cross-examined: "Any one coming up the
ladder could see that it was unsafe, but not if they came
from the third floor window."
Patrick
Mehan, for the defendant, testified as follows: "I am a
bricklayer, and always assisted in building stagings.
Employed by the defendant as a bricklayer. Helped construct
this staging about two weeks before it fell. Two of us worked
on it, and brought materials up from the ground. Materials as
good as the average, perhaps better. Nails were good. There
was sufficient material for the ledger. While we were raising
the staging, a heavy shower came up. One of the ledgers was
not nailed as well as we intended, and we did not go back to
nail it. Worked on the staging, don't know how long
before the fall. Bennett was with me. Did n't tell the
defendant of insecurity of ledger. We fixed the ledgers
according to our own judgment. Have been accustomed to build
stagings according to my own judgment." Cross-examined:
"I worked by the day, while building the staging. The
defendant was there almost every, if not every day. There was
no regular boss. Presume the defendant superintended the
work. I did n't, though I was paid more than others. The
defendant told us what lumber to use. Ledger was spruce. Saw
it after it was broken, split off. It was not cross-grained.
It split off with the grain. We did n't nail the middle
boards, intending to return. Afterwards went on the staging,
and took out window-caps, without having finished it. I did
not examine it to see if it was safe. I had forgotten that I
had left it unsafe. Intended to make it safe by driving in
more nails. Can't say how many nails we used. No weight
came on the ledger. They were put on simply to keep the poles
steady."
Wilder
Bennett, for the defendant, testified: "Have been
bricklayer for fifty years. Have built a great many stagings
helped build this about three weeks before the accident.
Interrupted in the building by a storm. I thought staging was
finished. Mehan did the nailing, while I brought up boards.
After the staging was built, I worked on the caps. Mehan and
two or three others helped me. Stood on the staging while
doing it. Arkerson, the morning of the fall, nailed the board
from a pole to the window-frame, to keep it steady. Staging
looked sound. Nothing said about the staging, and I saw no
trouble with it. We put on extra plank. Chambers did some
nailing. He took the nails and hammer, and said he nailed it.
Saw hod-carrier come up and step on the stage. Heard him dump
the mortar; he did it pretty quick." Cross-examined:
"In this work the defendant gave me directions, though
he gave me none the morning of the fall. Fixed the staging
when I went on the east side. Shifted the ladder. Don't
know whether the ladder was fixed this morning. Handed nail
to Chambers half an hour before the accident, to fix the
staging. When I left the staging three weeks before, I
thought it was finished. No agreement between Mehan and me as
to who should go back and nail it. No weight on the ledger;
it was all on the cross-pieces. It was not cross-grained, but
was fine spruce board, capable of holding...
