Burns v. Same

• Citation: 160 Mass. 457,36 N.E. 199
• Parties: BURNS v. WASHBURN. MURPHY v. SAME. BUTTOMORE v. SAME.
• Decision Date: 31 January 1894
• Court: United States State Supreme Judicial Court of Massachusetts

160 Mass. 457

36 N.E. 199

BURNS

v.WASHBURN.

MURPHY

v.SAME.

BUTTOMORE

v.SAME.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 31, 1894.

Exceptions from superior court, Plymouth county; Henry K. Braley, Judge.

Three actions of tort by Paul Burns, Michael Murphy, and John Buttomore against Sidney L. Washburn, for personal injuries caused by the fall of a staging on which plaintiffs were at work in the employment of defendant. The court ordered a verdict for defendant, and plaintiffs excepted. Exceptions overruled.

Chase & Bixby, for plaintiffs.

R.O. Harris, for defendant.

LATHROP, J.

The plaintiffs were what are known as “masons' tenders,” and were at work on a staging put up for the purpose of erecting a building on land belonging to the city of Brockton. The defendant was their employer, and was the contractor for doing the work. The staging fell, and the plaintiffs were injured. These actions are brought under St.1887, c. 270.¹ The first count in each case, we assume, was intended to be framed under section 1, cl. 1, and the question is whether a staging of the kind mentioned in the exceptions can be said to be a part of the defendant's ways or works. We are of opinion that these words in the statute refer to ways or works of a permanent character, such as are connected with or used in the business of an employer; and that they do not apply to a temporary structure like the staging in question, erected on the land of a third person. See Lynch v. Allyn, ante, and cases cited. The remaining question is whether there was any evidence that the accident happened “by reason of the negligence of any person in the service of the employer, intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence,” the second count being framed on section 1, cl. 2, of the statute above mentioned. The immediate cause of the fall of the staging was the negligence of the masons in driving but one nail in the end of a board, when there should have been several nails driven. There was no evidence that any one of the masons was in charge of the work more than another. The only possible ground upon which it can fairly be contended that the defendant can be held liable is that there was negligence on the part of Woodward. He was the general superintendent of the work, and there was evidence that he directed the masons to build a certain piece of wall, leaving them to construct their stagings, without giving them instructions about...