Colton v. Richards

• Decision Date: 30 January 1878
• Citation: 123 Mass. 484
• Parties: Eugene Colton v. E. T. Richards
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 484

Eugene Colton v. E. T. Richards

Supreme Court of Massachusetts

January 30, 1878

Argued September 25, 1877

Hampden. Tort for personal injuries caused by the fall of a staging, upon which the plaintiff was at work in the employ of the defendant. At the trial in the Superior Court, before Bacon, J., the plaintiff introduced evidence tending to show that he was employed by the defendant to work as a mason in the erection of a mill; that, a staging being needed to work upon, the defendant sent to the building a lot of material to be used therefor, and that the staging was put up by the fellow workmen of the plaintiff. There was evidence that the plaintiff aided in putting up the staging, but he denied it that the plaintiff went to work upon the staging after it was up, when a putlog (a piece of timber that runs from the outer ledge of a staging to a building, and on which the floor of a staging rests) broke, and he was thrown to the ground and received the injuries complained of; that this putlog had been in use by the defendant for about two years, and was defective by reason of one or more knots. The evidence was conflicting as to the number of the knots and ease of discovery of the defect. There was also evidence that the defendant had a large amount of staging material in a pile that he went with a teamster to the pile, and directed him to draw to this building from the pile what was needed for the staging at this building; that a quantity was drawn by the teamster, which was used at the building; that the building on the day of the erection of the staging, was nearly completed, and the staging material was lying on the ground in piles; that the fellow workmen of the plaintiff took from the mass, as it chanced, such material as they wanted to make this staging, including the putlog in question; that some of the persons employed in the erection of the building were journeymen, and that it was part of their trade to learn to build safe and proper staging, and that they superintended the erection of this staging.

The plaintiff contended that it was the defendant's duty to furnish the plaintiff a staging as a completed structure, as an appliance and implement for use in his employment; and that a putlog was a defined, prepared, manufactured utensil, made and fitted to be used in the manner this was used, and for a defined and well known component part of a staging.

The defendant testified that the other putlogs in the pile from which the one in question was taken were sound and good.

The plaintiff asked the judge to instruct the jury as follows: "1. It is the duty of an employer to provide reasonably safe and proper material and implements for his workmen to work with and use, and his failure so to do is negligence. 2. If it was the duty of the defendant to provide for the plaintiff a completed staging as a structure, as an implement or appliance to carry on this work, then he was bound to see that the staging was a reasonably safe and strong one, and suitable to the work required of the plaintiff, and the fact that fellow workmen of the plaintiff used poor material furnished by the defendant, in the erection of such staging, is no defence. 3. If the putlog was a manufactured and completed implement or utensil, and was furnished by the defendant for the plaintiff's use, he is liable, even though it was put in use by the act of the plaintiff's fellow workmen."

The judge refused to give these instructions, and instructed the jury that the plaintiff could not recover, unless they were satisfied that the defendant did not exercise ordinary care in the selection of men and materials to erect the staging, and that such want of ordinary care caused the accident; and that, if the defendant was to furnish a staging as a completed structure, he was to use such care in so doing as any person of ordinary prudence would use in providing such a structure; and that, if he was only to furnish material, he was to use ordinary care in the selection of material; that if he was to furnish this putlog as a manufacturer's utensil, he was to use ordinary care in so doing.

There being evidence, which the defendant contended showed that he did not superintend the erection of the staging, the judge also instructed the jury, at the defendant's request, as follows:

"1. If the defendant employed competent men to take charge of the erection of this building and of the...