Helen Kelley, Administratrix, v. James A. Norcross &Amp; Another

Decision Date15 January 1877
Citation121 Mass. 508
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesHelen Kelley, administratrix, v. James A. Norcross & another

Argued November 23, 1876

Suffolk. Tort against a firm of contractors, engaged in building Trinity Church, in Boston, by the administratrix of the estate of Patrick Kelley, who was injured, while mixing mortar on the floor of the church, by the falling upon him of a staging, and of the stone upon it. Trial in the Superior Court, before Gardner, J., who ruled that, upon the plaintiff's evidence, she could not maintain the action and directed a verdict for the defendants. If upon the evidence the action could be maintained, the verdict was to be set aside; otherwise, to stand. The nature of the evidence appears in the opinion.

Judgment on the verdict.

E. P Brown, for the plaintiff.

S. Hoar, for the defendants.

Devens, J. Ames & Endicott, JJ., absent.

OPINION

Devens, J.

If it be assumed that the fall of the staging, under the circumstances proved at the trial, afforded sufficient evidence that it was negligently constructed, the plaintiff still cannot recover, as the case fails to show any negligence, unless it was on the part of fellow servants of the plaintiff's intestate.

It is the duty of the master to provide the appliances with which work is to be performed, and, while he is not ordinarily responsible to a servant for the negligence of his fellow servants, yet, if such fellow servants are engaged, under his supervision, in performing this duty, which devolves upon him, he is responsible. The servant is not required to take the risk of the carelessness of those who undertake to discharge, under the master's direction, the master's duty towards him, even if they are also servants of the same master. Coombs v. New Bedford Cordage Co. 102 Mass. 572. Ford v. Fitchburg Railroad, 110 Mass. 240. Where, however, the master does not undertake the duty of furnishing or adapting the appliances by which the work is to be performed, but this duty is intrusted to or assumed by the workmen themselves, within the scope of their employment, he is exempt from responsibility, if suitable materials are furnished and suitable workmen are employed by him, even if they negligently do that which they thus undertake.

In Arkerson v. Dennison, 117 Mass. 407, upon the facts as proved, it would have been competent for the jury to have found that the defendant had not furnished suitable...

To continue reading

Request your trial
72 cases
  • Sullivan v. Hannibal & St. Joseph R.R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 31 Octubre 1885
    ...v. Newberry, 96 Pa. St. 246; 42 Am. Rep. 543; Blake v. Railroad, 70 Me. 60; 35 Am. Rep. 297; McDermott v. Boston, 133 Mass, 349; Kelly v. Norcross, 121 Mass. 508; Summersell v. Fish, 117 Mass. 312; O'Connor v. Roberts, 120 Mass. 227; Brown v. Winsna, etc., Ry. Co., 27 Minn. 162; 38 Am. Rep.......
  • Bowen v. Chicago, Burlington & Kansas City Railway Co.
    • United States
    • United States State Supreme Court of Missouri
    • 7 Mayo 1888
    ...... such materials. Kelley v. Norcross, 121 Mass. 508,. 510; Killea v. ... [8 S.W. 232] . and another witness says he inspected it at least twice a. ......
  • Larsen v. Doux
    • United States
    • United States State Supreme Court of Idaho
    • 15 Mayo 1905
    ...resolves itself into negligence of a fellow-servant; and the principle has been applied under a variety of circumstances. (Kelley v. Norcross, 121 Mass. 508; Killea Faxon, 125 Mass. 485; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Peschel v. Ry. Co., 52 Wis. 338, 21 N.W. 269; D......
  • Williams v. Ransom
    • United States
    • United States State Supreme Court of Missouri
    • 31 Marzo 1911
    ...... ladder used by another servant in his work, thereby becomes. ...[ Kelley. v. Norcross, 121 Mass. 508; Killea v. Faxon, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT