Colford v. New England Structural Co.
| Decision Date | 25 February 1910 |
| Citation | 91 N.E. 409,205 Mass. 283 |
| Parties | COLFORD v. NEW ENGLAND STRUCTURAL CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. R. Murphy and W. A. Buie, for plaintiff.
W. I Badger and W. H. Hitchcock, for defendant.
We think it clear that upon the common-law counts the action cannot be maintained. The plaintiff fully appreciated that the work in which he was engaged was highly dangerous; he with his fellow workmen put in place the plank which constituted the staging on which he was sitting and the blocks or timbers upon which the plank rested; he knew that if the plank was not high enough the trains would hit it, and that for his own safety he must see to it that the plank was high enough to clear the trains; and he cannot upon these counts hold the defendant liable for any negligence of his fellow servants, even though they were superintendents or in some position higher than his own. Ahern v Hildreth, 183 Mass. 296, 67 N.E. 328; Healey v George F. Blake Manuf. Co., 180 Mass. 270, 62 N.E. 270; O'Brien v. Rideout, 161 Mass. 170, 36 N.E. 792. He knew that trains were frequently passing under this staging, and he relied upon his fellow servants or a flagman of the railroad company to give him whatever warning he was to receive of the approach of a train.
The plaintiff has also in counts under the statute alleged the negligence of a superintendent. Rev. Laws c. 106, § 71; St. 1909, c. 514, § 127. But he cannot recover upon the failure of the superintendent to warn him of the approach of this train, for he knew that neither the superintendent nor any one else in behalf of the defendant had undertaken to do so. The testimony was that such warnings were given by the railroad company's flagman, and occasionally by any one, superintendent or workman, who happened to see a train; and there was nothing to show that the flagman was acting for the defendant or in the discharge of any duty intrusted to him by the defendant. This case is not like Boucher v. N. Y., N.H. & H. R. R., 196 Mass. 355, 82 N.E. 15, or Brow v. Boston & Albany R. R., 157 Mass. 399, 32 N.E. 362, relied on by the plaintiff.
The plaintiff claims that the superintendent was negligent in having the staging laid too low. But all the evidence is that the superintendent repeatedly told the plaintiff who constructed the staging to be sure to have it high enough to be out of the way of engines and...
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