Adasken v. Gilbert

• Decision Date: 02 March 1896
• Citation: 43 N.E. 199,165 Mass. 443
• Parties: ADASKEN v. GILBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 443

43 N.E. 199

ADASKEN v. GILBERT.

Supreme Judicial Court of Massachusetts, Hampden.

March 2, 1896

COUNSEL

Daniel E. Leary, for plaintiff.

William H. Brooks and William Hamilton, for defendant.

OPINION

LATHROP J.

This is an action of tort for personal injuries sustained by the plaintiff's intestate while in the employ of the defendant. There are four counts in the declaration,--one at common law, and the others either under St.1887, c. 270, or under that act as amended by St.1892, c. 260, § 1. No question of pleading is raised, nor was the plaintiff required to elect under which count she would proceed. The question before us is whether there was any evidence on which the plaintiff was entitled to go to the jury, the presiding justice having, at the close of the evidence for the plaintiff, directed a verdict for the defendant. The exceptions state that the plaintiff's intestate was a painter, and had learned the trade in Russia, and had worked at that business in Russia, in Connecticut, and in Springfield. In the latter place he had worked for the defendant three seasons or more. At the time of the accident he was engaged in painting the outside of a large building in Springfield, having worked on the job about two weeks. He worked, with two other persons, on a staging, which consisted of a ladder about 30 feet long, which had boards placed along the rungs. The ladder was held by three falls of rope, each attached to the roof of the building by a hook. There was a fall at each end of the ladder and one in the center. The staging was raised and lowered by means of ropes running through pulleys in these falls. There were also three ropes each three-eighths of an inch thick, running from the ladder to the building, which served to steady it, a rope being at each end of the ladder and one in the middle. The evidence leaves it very uncertain as to how the accident happened. There was some evidence that the rope which fastened the end of the ladder on which the intestate was sitting to the building either broke or slipped; that the staging swung outward, and the intestate fell to the ground, and received injuries from which he soon afterwards died. There was other evidence that the staging was about to be lowered, and that the rope at the end of the ladder was not fast to the building, when the intestate rose up and lost his balance and fell over. Taking the view most favorable to the plaintiff and assuming that the rope broke, or that the knot slipped we are of opinion that enough has not been shown to entitle the plaintiff to recover. The testimony is uncontradicted that the three men put the staging together, and each man selected his own rope; that the rope which broke or slipped was a new one, and appeared plenty strong enough for that place. There is no evidence that the defendant did not furnish a sufficient supply of proper ropes at the place from which these were taken. Carroll v. Telegraph Co., 160 Mass. 152, 35 N.E. 456, and cases cited. Under these circumstances, the mere fact that the rope broke is not enough to show that the defendant was guilty of negligence. There was no evidence of any defect in it for which he ought to be held answerable. Allen v. Iron Co., 160 Mass. 557, 36 N.E. 581; Kalleck v. Deering, 161 Mass. 469, 37 N.E. 450. As there was no evidence that the defendant undertook to furnish the staging as a completed structure, but intrusted the making of it to the intestate and his fellow servants, the defendant is not liable if there was any defect in the rope. Kelley v. Norcross, 121 Mass. 508; Colt v. Richards, 123 Mass. 484; Killea v. Faxon, 125 Mass. 485; Hoppin...