Callahan v. Trs. of Phillips Acad.
| Decision Date | 31 December 1901 |
| Parties | CALLAHAN v. TRUSTEES OF PHILLIPS ACADEMY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from superior court, Essex county; Sheldon, Judge.
Action for death by Ann Callahan, administratrix of the estate of Michael Callahan, deceased, against the Trustees of Phillips Academy. There was a verdict for defendant, and case reported. Exceptions overruled.
J. J. Mahoney, B. E. Crowell, and J. J. Sullivan, for plaintiff.
H. P. Moulton and E. B. Bishop, for defendant.
In this case the plaintiff was thrown to the ground from a staging on which he was standing while painting the ceiling of the defendant's library at Andover. The cause of the accident was the giving away of a ledger board which supported the planks of the staging on which he was standing at the time. The plaintiff was in the employ of one Rowe, a painter in Andover, who had been previously employed from time to time by the defendant corporation to paint its buildings. One Grant, who was the superintendent of the defendant's buildings at Andover, asked Rowe to do the work of painting the library, and thereupon he went to work, and, ‘although he knew that a staging would be required, he did not say anything about one to Grant until he (Rowe) was ready to go to work.’ When Rowe was ready to go to work, he said to Grant: ‘I will have to have a carpenter to build the scaffold. ‘Well,’ he says, ‘my carpenters are busy over to the Pike barn, and you will have to build that scaffold yourself.’' Rowe then asked what he was going to do for lumber, and Grant told him that there was ‘plenty of stuff out back of the barn you can use, and there is some over in the woods.’ Thereupon Rowe, with two of his men, picked out from the pile back of the barn what they needed in addition to the lumber which Rowe furnished himself. Rowe furnished the planks on which the men using the staging stood. There was evidence that the ledger board in question was a hemlock board, planed on one side, some seven or eight feet in length, five inches wide, and seven-eighths of an inch thick, and that hemlock is not suitable wood to use for ledger boards. It further appeared that in doing this work Rowe ‘took what paint he needed from the defendant corporation's storehouse.’ ‘He had at times as many as 35 men at work at once on this job; that time cards were furnished him by Grant; that he filled them out, one for each man, and handed them in each day; that he (Rowe) hired, discharged, and paid his men, including Callahan; that the defendant corporation gave no directions to him in regardto his men; that he was paid at the rate of so much a day for himself and each of his men, and that when this job was finished he put in one bill for the whole thing, and was paid; that the defendant corporation had never hired him by the month, or the year, or anything of that kind.’ It also appeared from the testimony of Grant that no directions were given to Rowe by him or any one else in regard to the way in which the work should be done on the library. Rowe testified that he and Grant talked over the colors. Grant testified that the color was not selected by him.
The plaintiff's first contention is that the jury could have found for him on the principle of Mulchey v. Society, 125 Mass. 487; but there was no evidence in this case on which the jury could have found that the defendant invited the plaintiff to use a staging which was to be furnished by it for use in painting the library ceiling. When Rowe was first asked to do the painting in question, nothing was said as to who should furnish the scaffold or staging. When Rowe was ready to go to work, he asked Grant to furnish it, but Grant refused to do so, saying that his carpenters were busy. Thereupon Rowe put it up, using some boards belonging to the defendant for the uprights and the ledger boards, and furnishing himself the planks on...
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