Johnson v. City of Boston

• Decision Date: 25 June 1875
• Citation: 118 Mass. 114
• Parties: Robert Johnson v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 114

Robert Johnson v. City of Boston

Supreme Court of Massachusetts

June 25, 1875

Suffolk. Tort for personal injuries.

At the trial in this court, before Endicott, J., the plaintiff offered to prove that he was in the employment of one Tinkham, who employed a large number of men, and whose business was drilling and blasting rock, and doing work of a like nature for all parties who chose to employ him; that he sent his workmen from place to place where he had work for them to do; that Tinkham sent the plaintiff, and eight other workmen in his employ, to drill and blast rock in the bottom of a sewer which the defendant, by its servants and agents was engaged in constructing in Warren Street, in Boston under an order of the board of aldermen of the city directing the superintendent of sewers to construct a common sewer in the said street and to report a schedule of the expense thereof to the board pursuant to law; that among the workmen sent by Tinkham was one Harrigan, who worked with the others and directed them where and how the drilling was to be done, and superintended the blasting; that he was not called or styled a foreman, and he received only the same pay as the others; that the duty of these nine men sent by Tinkham was to drill and blast the rock to deepen the sewer, in such places as might be pointed out to them by the foreman of the sewer department of the city in charge of the whole work; that they were to work in groups of three in drilling and blasting, and understood and were competent to do the work; that after it was blasted the rock was removed by men employed and paid by the defendant corporation; that the sewer was in process of construction between two street railway tracks laid in Warren Street, and the bottom of it was to be ten feet below the grade of the street; that the work of digging and removing the earth, clay and loose material, of bracing and protecting the sides of the sewer, and of laying and covering the sewer, was done by workmen and laborers employed and paid by the defendant corporation; that the whole work, including the drilling and blasting, was prosecuted under the general supervision of the defendant's superintendent of sewers, and under the direct charge and management of a foreman of the sewer department, employed and paid by the defendant corporation; that Tinkham furnished the plaintiff and his associates to do the drilling and blasting; and the defendant corporation paid Tinkham the sum of $ 2.45 per day for each of his men for the time they were actually employed, and Tinkham paid his men $ 2.25 a day each, gave them orders where to go and what to do, and retained control of them so far that he could change them from one place of work to another and could dismiss them; that at the point where the plaintiff was injured, the sewer had been dug nine feet below the grade of the street, and the clay and loose material had been removed by the men employed and paid by the defendant corporation; that it became necessary to blast and remove about one foot deep of rock-material in order to make the sewer of the required depth; that while engaged in drilling this rock, the sides or walls of the sewer above him caved or fell in, and the earth and loose material therefrom fell upon him, and he was injured.

The plaintiff also offered to prove that by reason of the negligence of those employed by the city the sides or walls of the sewer at that point were not braced in any manner, and that had they been properly braced they would not have caved or fallen in, and the earth would not have fallen upon the plaintiff and injured him; that it was not the duty or even the right of the plaintiff or any of the men in the...