Bernabeo v. Kaulback

• Decision Date: 01 March 1917
• Citation: 226 Mass. 128,115 N.E. 279
• Parties: BERNABEO v. KAULBACK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 128

115 N.E. 279

BERNABEO

v.KAULBACK.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1917.

Exceptions from Superior Court, Middlesex County; Wm. B. Stevens, Judge.

Action by Joseph Bernabeo against Frederick R. Kaulback, administrator. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

M. F. Cunningham, of Boston, and E. J. Flynn, of New York City, for plaintiff.

Jos. Wiggin, McLellan, Carney & Brickley, and Waldo Co. Hogdon, all of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover for personal injuries received through the negligence of servants and agents of the defendant's intestate by the plaintiff in the course of his employment for the defendant's intestate, hereafter referred to as the defendant. The plaintiff was a laborer and had been at work about a greenhouse and as general handy man for the defendant for seven or eight years. At the time of his injury he was engaged with several other men in setting up in sections a small barn which had been removed from another place. The body of the barn, which was between twenty-four and twenty-eight feet long and sixteen feet wide, had been put in place. The roof was cut into four sections, each sixteen feet one way by six or seven feet the other way. Two of these roof sections had been put in place under the general direction of a man named Simmonds. Then the defendant's son assumed superintendence of the work. Pursuant to a direction from him the plaintiff took a position on a three by five wooden joist, which was a part of the rear wall of the barn, and reported that the third section of the roof must be moved about two inches to be in its proper place. The plaintiff was told that he must ‘pull from the top’ and that the others would push from underneath. The other men standing underneath or inside where they could lift and push on that section of the roof, the order, ‘You push this way and you lift up,’ was given, and at a signal each began to do his part. The plaintiff bent over and lifted the section of roof and the other men lifted and pushed in an effort to get the section in place. As a result the plaintiff was thrown backward and injured. There was testimony from an experienced builder that this was not a proper method of replacing a roof upon such a building. It did not appear that the plaintiff ever had been called on to do this sort of work before, or that anything was said about such work when he was employed.

[1] Since the plaintiff was injured after the Workmen's Compensation Act took effect, and since the defendant was not a subscriber under that act, it is not a defense to this action that the plaintiff was negligent or that his injury was caused by the negligence of a fellow employé. St. 1911, c. 751, § 1. The plaintiff is entitled to recover if he can trace his injury to the negligence of his employer, or of any of his fellow servants acting within the scope of his employment, as a proximate cause. The plaintiff was not experienced in this kind of work. He was an ordinary laborer. He was unskilled in meeting the dangers which confront one engaged in building construction even of a simple type. He may not have appreciated the hazard of standing upon a narrow foothold while putting forth his whole strength in combination with numerous other men to move a heavy and cumbersome object where a loss of balance, due either to his own exertion or the sudden or slightly unexpected movement of the section of the roof, might be fraught with serious consequences. It may be that such a...