Bonin v. Ballard

• Decision Date: 26 November 1907
• Citation: 196 Mass. 524,82 N.E. 702
• Parties: BONIN v. BALLARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 524

82 N.E. 702

BONIN v. BALLARD et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 26, 1907

COUNSEL

H. L Parker, Jr., for plaintiff.

Henry F. Harris and Charles C. Milton, for defendants.

OPINION

SHELDON J.

Apart from the difficulty in the way of maintaining an action against the two defendants jointly (Mulchey v. Methodist Religious Society, 125 Mass. 487, 489), the plaintiff could not recover upon the first count of his declaration because there was no evidence of negligence on the part of the defendant Harry Ballard. As to the other counts, it would perhaps be enough to say that each of them rests upon the averment that the plaintiff was a servant of one or both of the defendants; and, as he has contended in this court, that he did not become and was not such a servant, and may be presumed to have made the same contention in the superior court, the verdict was rightly ordered upon this contention for if there was no such relation, the plaintiff must fail upon each of these counts. But we prefer to pass upon the merits.

The jury doubtless might have found upon the evidence that although the plaintiff was in the general employ of the People's Coal Company, that company had so lent his services to the Ballard estate that the control over him had passed for the time to that estate, and that at the time of the accident he was a servant of the defendant Mary A Ballard as the trustee of that estate, and had as against her the rights of a servant. Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328, and cases there cited. There is nothing in Oulighan v. Butler, 189 Mass. 287, 290, 75 N.E. 726, inconsistent with this.

But there was no evidence of any defect in the ways, works or machinery of this quarry. The stones of which one fell upon the plaintiff were merely temporarily put in a pile, and could in no sense be considered a part of such ways, works or machinery. Feeney v. York Mfg. Co., 189 Mass. 336, 75 N.E. 733. They were like the pile of boards in Campbell v. Dearborn, 175 Mass. 183, 55 N.E. 1042. This pile was not intended to be itself used by the workmen, like the staging in Prendible v. Connecticut River Mfg. Co., 160 Mass. 131, 35 N.E. 675. Accordingly the action could not be maintained upon the second count of the declaration.

Nor, if we assume that Sullivan could have been found to be a superintendent within the meaning of Rev. Laws, c. 106, § 71 cl. 2, was there any evidence of negligence on his part. It does not appear that he had any reason to suppose that he was sending the plaintiff into a dangerous place without proper warning. It is not shown that there was any such unknown danger as to...