Brady v. Norcross

• Decision Date: 06 January 1899
• Parties: BRADY v. NORCROSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 331

52 N.E. 528

BRADY v. NORCROSS.

Supreme Judicial Court of Massachusetts, Hampden.

January 6, 1899

COUNSEL

J.B. Carroll, W.H. McClintock, and J.F. Stapleton Jr., for plaintiff.

H Parker and C.C. Milton, for defendant.

OPINION

BARKER J.

The plaintiff, a painter in a building under construction, fell 18 or 20 feet to the floor of a large room, from a plank which was part of a staging built in that room, to be used there by masons and painters in finishing the interior of that room, and to be taken apart and removed when that work should be finished. The staging was made of ordinary construction timber, and consisted of uprights held in place by ledger boards or braces, to which uprights were nailed tiers of brackets, upon which were laid, as the work might require, loose planks to support the workmen. Each bracket consisted of two boards nailed together at one end, and was fastened to an upright by nails driven through the other ends of the boards of which the bracket was made. One of the brackets, while helping to bear the weight of two planks and of three painters, gave way; the boards of which it was made splitting where it was nailed, and letting down the planks and the workmen. The plaintiff has obtained a verdict in tort, upon a common-law count, against one of his employers. At the trial the defendant introduced no evidence, and his principal exception is to the refusal to rule that there was no evidence upon which the plaintiff could recover upon the common-law count. As this was a temporary staging, intended to be used only in finishing the room where it was constructed, if the plaintiff's employers furnished sufficient quantities of suitable materials for staging, employed suitable workmen, and did not themselves undertake the duty of furnishing the staging as a structure, but only of supplying materials and labor by which it might be built, and from time to time adapted to the work, and if the duty of furnishing or adapting the staging as an appliance for use in the work of finishing the room was intrusted to or assumed by the workmen themselves, within the scope of their employment, the employers are not answerable to the plaintiff for his injury. Kelley v. Norcross, 121 Mass. 508; Colton v. Richards, 123 Mass. 485; Killea v. Faxon, 125 Mass. 485; Clark v. Soule, 137 Mass. 380; Hoppin v. Worcester, 140 Mass. 222, 2 N.E. 779; O'Connor v. Neal, 153 Mass. 281, 26 N.E. 857; Kennedy v. Spring, 160 Mass. 203, 35 N.E. 779; Adasken v. Gilbert, 165 Mass. 443, 43 N.E. 199; Kalleck v. Deering, 169 Mass. 200, 47 N.E. 698. On the other hand, if the staging was furnished by the employers as a complete structure, or if they themselves supervised and directed its construction, or if, relying upon its construction by their workmen for themselves, the employers negligently failed to provide suitable and sufficient materials, or negligently hired incompetent workmen, the employers might be answerable to the plaintiff. Arkerson v. Dennison, 117 Mass. 407; Mulchey v. Society, 125 Mass. 487; Clark v. Soule, ubi supra; Prendible v. Manufacturing Co., 160 Mass. 131, 35 N.E. 675; Twomey v. Swift, 163 Mass. 273, 39 N.E. 1018.

There was no testimony tending to show that the employers furnished the staging as a completed structure, or that either of them exercised or assumed to exercise any personal oversight over its construction. Its history was not fully or satisfactorily disclosed by the evidence. The plaintiff began working in the building in August, 1896, and was hurt on March 2, 1897. He testified that the staging was in the room when he began work in the building. Douglass, a quasi foreman of the painters but who also painted when he had time, testified that he began to work in the building about three months before the accident, and that the staging was then in the room. Ramilly, a painter who fell at the same time with the plaintiff, testified that he could not tell who built the staging. Knight, a painter at work upon the staging at the same time, testified that he did not know who built the staging, but that it was built before he came there to work, in October, 1896. Pike, a painter who went there to work in August, 1896, testified that the painters did nothing about building the staging in that room; that he did not know the men who built it; that it was built under Smith's orders; that the witness thought it was built after he came there, but was not sure. These were all the witnesses, except Smith, who testified merely that he was employed by Norcross Bros. upon the building, and that they were doing the entire work, except that there was a subcontract for the mason work. There was no other evidence as to how the staging was originally erected. Pike testified that Smith was a carpenter, and that he gave orders and directions, and that no one gave orders and directions to Smith, except one Connors, whose relation to the work does not otherwise appear. Douglass also testified that Smith gave orders to build stagings, and orders to take them down when the workmen were through with them, and that the witness himself gave orders, and, if there was trestle work, would say, "Come, boys, let us put the trestle in that room and go onto it," and that he said this in regard to staging and trestle work. Knight also testified, "We painters did not customarily have anything to do with reference to the building or bracing of stagings," and that he had observed the building of stagings in that building only in the store on the ground floor, and did not notice whether they were built under the direction or order of anybody. Douglass further testified to the previous condition of the staging, and to certain things which occurred on the Saturday previous to the accident, with reference to the preparation of the staging for its use by the painters in doing the work on which they were engaged when the...