Clark v. Soule

• Decision Date: 26 June 1884
• Citation: 137 Mass. 380
• Parties: John Clark v. Lawrence P. Soule. Daniel White v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 380

John Clark v. Lawrence P. Soule. Daniel White v. Same

Supreme Court of Massachusetts

June 26, 1884

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Middlesex. Two actions of tort, for personal injuries caused by the fall of a staging, upon which the plaintiffs were at work in the employ of the defendant. The cases were tried together in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:

The plaintiffs introduced evidence tending to show that the defendant, a contractor and builder, in December, 1882, was erecting, under contract, a brick building for the American Tube Works at Somerville; that he had a foreman of the job, one William A. Pike; that the plaintiffs were hod-carriers in the defendant's employ; that on the morning of December 7, 1882, the plaintiffs, with other fellow workmen, were ordered by Pike to carry bricks upon a staging in front of the building; that while the plaintiffs were on the staging it fell, and they were thereby injured.

The staging consisted of certain posts, called uprights, running perpendicularly from the ground, seven or eight feet apart, and four or five feet from the wall of the building; a board, called a ledger-board, was fastened to and connected these uprights at a height of from fifteen to twenty feet from the ground; running from the ledger-board into the wall were certain pieces of joist, in size three inches by four, called putlogs, and from four to eight feet apart, upon which the planks of the staging rested. The evidence was conflicting as to the number of putlogs and their distance apart.

It was agreed that the staging fell because of the breaking of one of these putlogs, the cause of its breaking was disputed.

The plaintiffs contended that it broke because it was defective, and that, because of its defective construction, the defendant was liable; and they introduced evidence tending to show that at the time of its breaking there was upon it a weight much less than it could and ought to bear if sound; that they were doing their work in a proper and careful manner, and were using the staging in a proper, usual, and careful way; and that, after the accident, the broken putlog was examined and found to have nails and nail-holes in the break, and to be old, rotten, and defective.

They further introduced evidence tending to show that the materials of which the staging was made, including the broken putlog, were owned and furnished for its construction by the defendant; that they were so furnished cut in a certain size and shape, and all ready to be made into a staging; that this required only a joining together into a structure of these various prepared parts, known as uprights, ledger-board, putlogs, and planks; that these parts, including the broken putlog, had been made up and used as a staging at various places and times before, covering a period of nearly two years; that they were sent by the defendant from Watertown, where they had been used two or three months, to this building at Somerville, and were there put in a pile near the building to be used for the construction of the staging for the building; that all the material in the pile was old, and seemed to be of the same quality and condition; that after the accident the material that was left in the pile was examined, and found to contain other defective putlogs, which broke upon being tested.

The plaintiffs further introduced evidence tending to show that, on the morning of the accident, the staging which fell was erected by the foreman Pike and two workmen, Riley and Devoe, under the superintendence of Pike; and introduced the answers of the defendant to written interrogatories, in which answers he said, after stating that he was erecting this building under contract: "My relations to the building itself were precisely the same as to other buildings and other work upon which I was engaged at the time. It was impossible for me to give my personal supervision to each job on hand, and upon each one I had a foreman or superintendent. Pike was the foreman upon the American Tube Works job. He superintended and gave his constant personal attention to the whole matter, and I furnished the men and materials necessary. I visited the building as it progressed, substantially every day, to find out how the work was getting on, and to be able to have the different materials on hand when required. I visited in the same way all the different jobs on my hands every day. As this job was situated so that I passed by there on my way to the city and to my other work, I always stopped there the first thing in the morning. I exercised no personal supervision of the work, but left it entirely with Pike, and was not often detained at the building more than fifteen or twenty minutes each morning." After stating that he was present at the building on the morning of the accident, but before the staging fell, and that he "did not make any examination that morning of the staging that afterwards fell," he further answered: "At previous visits, before the staging which fell had been raised to the place from which it fell, I had been upon it when examining the brickwork. It was a thoroughly built staging, made in the best manner, as I thought. I did not superintend its construction. It was built under the direction of Pike by the masons, and it looked like a substantial and proper staging." He added, that he owned and furnished the materials that were used in its construction.

The plaintiffs further introduced evidence tending to show that Devoe was ordered to go to the pile and get some putlogs for building this staging; that he went to the pile, picked some out at random, without making any particular selection or examination; and that these were used in the staging, and included the one that afterwards broke.

The defendant contended that the putlog in question was sound and good, and that it broke because the plaintiffs and their fellow workmen improperly crowded on it, and improperly and negligently dumped their bricks upon it; and he introduced evidence tending to show that the lumber from which it and the rest of the staging materials were made was originally carefully selected; that the materials had received proper usage, and were in a safe and sound condition when brought to Somerville and there used; that the putlog itself was examined after it broke, and was found to be of sound, good material, and in a sound condition; that it would bear a weight of from one and a half to two tons, but would be liable to be broken by throwing down hods of brick upon it; that the plaintiffs and their fellow workmen crowded together over it, and improperly threw their bricks down upon it, though they had previously been cautioned not to do so; that the materials furnished by the defendant in the pile were sound and good. The defendant further introduced evidence tending to show that fellow workmen of the plaintiffs built the staging, with Pike helping and directing.

It was not contended that the defendant had employed incompetent men, or that the staging, in its form and structure, was improper or defective, except in having in it defective and improper materials.

The plaintiffs contended that it was the duty of the defendant to use ordinary care to furnish a safe and proper staging as a completed whole; that whether the duty of furnishing the staging as a completed whole was on the defendant, or was assumed by fellow workmen of the plaintiffs, it was the duty of the defendant to use...