Dunleavy v. Sullivan

• Decision Date: 21 October 1908
• Parties: DUNLEAVY v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 29

85 N.E. 866

DUNLEAVY v. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 21, 1908

COUNSEL

J. B. Carroll and W. H. McClintokc, for plaintiff.

C. T Callahan, for defendants.

OPINION

LORING J.

This is an action for personal injuries caused by the giving way of a staging on which the plaintiff was at work. The plaintiff was a servant of the defendants, employed in putting new metal sheathing on the outside of a building known as the 'Russell Building,' on Suffolk street in Holyoke. This building was 30 feet high in front, that is, on Suffolk street, with a roof sloping down toward the back; at the back it was 21 to 23 feet high. There was a conflict as to the depth of the building, the plaintiff testifying that it was 30, and one of the defendants that it was 90, feet deep.

Next to the Russell building was a low wooden shed, also facing on Suffolk street, which extended back about the same length as the Russell building. This shed was from 12 to 18 feet high in front. Its roof also sloped down toward the back, and at the back it was a foot lower than at the front. There was some evidence that there was an addition in the rear which was 8 feet higher. But that is not material.

The space between the Russell building and this shed was put by the plaintiff at 18 inches, and by one of the defendants at 21 inches.

The work which the defendants had undertaken to do consisted in stripping off old and putting new metal sheathing on the outside of the Russell building. This metal sheathing came in pieces 4 feet long and 2 feet 4 inches. wide.

The plaintiff testified in his own behalf, and called as a witness one Bramham, who was still in the defendants' employ.

The story told by Bramham was that while stripping off the old and putting on the new metal sheathing between the two buildings below the roof of the shed, the defendants' workmen had constructed for themselves a staging of the following description: Two sets of cleats were nailed to each building. On these sets of cleats cross-pieces were laid. On these two sets of cross-pieces a 12-foot ladder was placed and on the ladder boards were laid, on which the men stood while at their work. While working between the buildings, seven-eighths boards had been used as cleats, but when the work progressed to the point where a staging above the roof of the shed became necessary he, or he with another. went to a building known as the 'Smith Building,' where other employés of the defendants were at work, and picked out 2x3 boards belonging to one Prew, who was the contractor for the carpenter work on that building, and used these as the cleats nailed onto the Russell building. Opposite each of these two cleats was placed a ladder, the foot resting on the roof of the shed and the top resting against the side of the Russell building. Two corss-pieces were then placed in position, one end resting on the cleat and the other on a rung of one of the ladders. Then, as before, a ladder was laid on these cross-pieces, on this ladder boards were placed, and the staging was complete.

The accident happened about half-past 4 on a Wednesday afternoon, and was caused by one of these 2x3 boards splitting lengthwise; that is to say, the board in question had been nailed on the Russell building lengthwise, up and down; it had split in two, the two halves had dropped off, one on each side of the nails, and had let down that end of the staging. By Bramham's story the 2x3 boards for cleats were procured at the Smith building that day. In addition they were by his testimony procured on the employés own motion and without the knowledge of the defendants. Bramham testified that they got the 2x3 boards, in place of using the seven-eighths boards used before, because they would give better security on the staging, and because the seven-eighths boards which had been in use 'wouldn't have been sufficient.'

The plaintiff's testimony was that these 2×3 boards had been procured some two weeks before the day of the accident, when the work on the Russell building began. He testified: That one afternoon the defendant Carmody told him (the plaintiff) to go with Bramham to work on the Russell building. That Bramham then said that they would have to have a staging between the two buildings and Carmody told them to 'Go and pick it out. Find out if there is anything down cellar.' That...