Eldred v. MaCkie

• Citation: 178 Mass. 1,59 N.E. 673
• Parties: ELDRED MACKIE et al.; GOODSPEED v. MACKIE et al.; GOODSPEED v. MACKIE.
• Decision Date: 27 February 1901
• Court: United States State Supreme Judicial Court of Massachusetts

178 Mass. 1

59 N.E. 673

ELDRED MACKIE et al.; GOODSPEED v. MACKIE et al.; GOODSPEED v. MACKIE.

Supreme Judicial Court of Massachusetts, Plymouth.

February 27, 1901

COUNSEL H. H. Chase, for plaintiffs.

Chamberlain & Fletcher, for defendants.

OPINION

MORTON J.

These two cases were tried together. The declaration in each case is the same, and alleges, in substance, that the plaintiff was employed by the defendants, and, being himself in the exercise of due care, was negligently put to work by them in an unsafe and dangerous place, to wit, under a flooring which was heavily loaded with lumber and boards and improperly supported, and which fell and injured him. The declarations evidently are drawn on the footing that the relations between the parties were those of master and servant. The undisputed evidence showed that the defendants had contracted with the city of Brockton to build a brick school house, and had sublet a portion of the work to the plaintiffs and two other persons, under a written contract between them and the defendants. It was provided in this contract that the work should be done by the plaintiffs and their associates 'to the satisfaction of the superintendent of public property of the city of Brockton.' So far as appears, the contract gave the defendants no control over the plaintiffs and their associates, but they were at liberty to do the work in their own way and when they chose so long as they performed their contract. It appeared in evidence that they selected one of their own number--one Simmons--as a working manager, and Simmons testified that 'he received orders and directions from no one.' The accident occurred while the plaintiffs were on the second floor of the building, looking for staging for a chimney, on which they were going to work, and was caused by the falling of the third floor. There was no evidence that they were going to work on the chimney in consequence of any specific orders or directions by the defendants. On the contrary, one of the plaintiffs testified that no one told them to go to work that morning on the chimney. He testified, in substance that they knew when to go to work themselves, and that there was no other work for them to do, except on the chimney. There was evidence tending to show that the defendants had directed the plaintiffs to hurry up the chimney, and for two or three days had been urging them to hurry it along. But this falls far short...