Blohm v. Boston Elevated Ry. Co.
| Decision Date | 27 May 1915 |
| Citation | 108 N.E. 1040,221 Mass. 390 |
| Parties | BLOHM v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Warren Burt & Palmer, of Boston, for plaintiff.
Edward I. Taylor and J. W. Britton, both of Boston, for defendant.
The negative answer of the jury having disposed of the defense that the action was barred by the release and the plaintiff's due care being conceded, the only question on the report is whether there was any evidence that his injuries were caused by the defendant's negligence. The plaintiff was employed by the defendant as a painter on outside work, and the evidence was undisputed that on the morning of the day of the accident he was directed by his subforeman, whose duty it was to set the painters at work and to look after them, to go upon the staging and paint the windows of the defendant's duilding in process of construction. It was the defendant's duty, at common law under which the action is brought, to provide the plaintiff in the performance of his work with reasonable safe appliances, and to maintain them in a reasonably safe condition. Ruddy v. George F. Blake Mfg. Co., 205 Mass. 172, 178, 179, 91 N.E. 310, and cases cited. And the employer cannot relieve himself from liability by delegating the performance of this duty to competent employés even if he provides them with suitable materials. Rogers v. Ludlow Mfg. Co., 144 Mass. 198, 204, 205, 11 N.E. 77, 59 Am Rep. 68; Twomey v. Swift, 163 Mass. 273, 39 N.E 1018; Perry v. Webster Co., 216 Mass. 147, 103 N.E. 379.
If, however, the workmen within the scope of their employment erect the staging for themselves as the work proceeds, the employer, where he has provided proper materials, is not liable to an injured fellow workman if the staging is defective and unsafe. Brady v. Norcross, 172 Mass. 331, 333, 52 N.E. 528; and cases there collected; Granara v. Jacobs, 212 Mass. 271, 274, 98 N.E. 1029. But a staging in position furnished by the employer is a structure or appliance, within our decisions, for which, if defective and unsuitable, he is responsible. Arkerson v. Dennison, 117 Mass. 407; Mulchey v. Methodist Religious Society, 125 Mass. 487; Prendible v. Connecticut River Mfg. Co., 160 Mass. 131, 139, 35 N.E. 675; Feeney v. York Mfg. Co., 189 Mass. 336, 337, 75 N.E. 733; Johnson v. Otis Elevator Co., 211 Mass. 504, 98 N.E. 505.
It is apparent that the painting could not have gone on without using the staging, and there is no evidence that the painters were to build their own stagings from materials supplied by the defendant, or to use a staging already built by other mechanics employed in other branches of the work. The defendant offered no evidence and the jury, under the second count of the declaration as amended, would have been warranted, from the uncontradicted testimony of the subforeman that the staging was in place before he came on the 'job' and that before setting the men at work he obeyed the instructions given him by going over the staging to ascertain if it was well secured and properly put up, in finding that the defendant originally had provided or had accepted for its own use the staging here in question. Mulchey v. Methodist Religious Society, 125 Mass. 487; D'Almeida v. Boott Mills, 209 Mass. 81, 86, 95 N.E. 398, Ann. Cas. 1913C, 751, and cases cited.
The jury further could find that the plaintiff while performing his work in the usual way must pass over this staging, from the windows he had painted to the next unpainted window, and that as he was passing the staging suddenly gave way throwing him to the ground, causing severe and permanent injuries. If the accident arose from a defect in the staging, which could have been guarded against by the exercise of reasonable diligence, the plaintiff is entitled to damages. Arkerson v. Dennison, 117 Mass. 407; Mulchey v. Methodist Religious Society, 125 Mass. 487; Twomey v. Swift, 163 Mass. 273, 39 N.E. 1018; Prendible v. Connecticut River Mfg. Co., 160 Mass. 131, 35 N.E. 675. What could the jury have found on all the evidence? The construction was simple. The uprights were held in position by braces or ledgerboards from which cross pieces or putlocks extended to the...
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