Killea v. Faxon

Citation125 Mass. 485
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
Decision Date17 October 1878
PartiesMichael J. Killea v. Henry H. Faxon & others

Argued November 19, 1877

Suffolk. Tort for personal injuries caused by the fall of a staging, upon which the plaintiff was at work, while he was as alleged in the declaration, in the employ of the defendants. Trial in the Superior Court, before Gardner, J who ruled that, upon the plaintiff's evidence, he could not maintain the action, and, by consent of parties, before verdict, reported the case for the determination of this court. If, upon the evidence, the action could not be maintained, judgment was to be entered for the defendants otherwise, the case was to stand for trial. The nature of the evidence appears in the opinion.

Judgment for the defendants.

L. W. Howes & F. A. Dearborn, for the plaintiff.

A. French, for the defendants.

Morton, J. Endicott & Lord, JJ., absent.

OPINION

Morton, J.

There was evidence at the trial tending to show that the staging was improperly constructed and unsafe, because the brackets, upon which it was supported, were insecurely fastened to the building. Upon this point, there was evidence proper to be submitted to the jury.

The defendants were repairing a building belonging to the Quincy Reform Club. For the purposes of this case, we treat them as subject to the same liabilities as if they were the owners of the building. They employed one Higgins, a carpenter, to superintend the whole job. When the time came for putting on the gutters, Faxon, one of the defendants, told Higgins that he wanted a staging put up, and the staging was erected under the direction of Higgins, who used his own brackets, for the sole purpose of putting on the gutters. Faxon, on the next day, ordered of Loring, a coppersmith, some copper gutters for the building, and directed him to send a man to put them up. Loring sent the plaintiff, and, when he arrived at the building, Faxon was there, and directed him where to go to work. There was no evidence of any negligence, except the negligence of Higgins, in constructing the staging. The question is, whether the relations of the parties were such that the defendants are responsible to the plaintiff for such negligence.

On the one hand, is the familiar rule that one who enters the service of another takes upon himself the risks incident to the employment, including the risk of the negligence of fellow-servants employed...

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    ...temporary bridge was planned by such foreman and by such mechanics with such materials. Kelley v. Norcross, 121 Mass. 508, 510; Killea v. Faxon, 125 Mass. 485-6; Armour v. Hahn, 111 U.S. 313, 318; Peschel v. Railroad, 62 Wis. 338; Arkerson v. Dennison, 117 Mass. 407, 412; Wilson v. Merry, L......
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