Floyd v. Sugden

• Decision Date: 03 April 1883
• Parties: Charles Floyd v. Richard Sugden
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 563

Charles Floyd v. Richard Sugden

Supreme Court of Massachusetts

April 3, 1883

Argued October 6, 1882 [Syllabus Material]

Worcester. Tort for personal injuries occasioned to the plaintiff while in the defendant's employ. The declaration alleged that the injuries were caused by the negligence of the defendant, "in not supplying suitable safe and sufficient machinery, appliances, tools and implements for the safe performance of the work upon which the plaintiff was engaged." Trial in the Superior Court before Knowlton, J., who allowed a bill of exceptions, in substance as follows:

On September 25, 1879, the defendant purchased a mill property in East Brookfield. The premises were out of repair, and the defendant hired one Gilman to take the entire charge of them, to make any and all repairs that in Gilman's judgment might be necessary to put the premises into a proper condition for use or for sale. Gilman, in accordance with the instructions of the defendant, assumed the entire control of the premises, collecting the rents, selecting, hiring and discharging the employees, purchasing and providing whatever tools, appliances and machinery he deemed necessary, and paying all bills, including the wages of the employees, with money furnished for that purpose by the defendant, who withdrew entirely from the management of the repairs, and did not undertake to exercise any discretion or control over the acts of Gilman or the employees. Gilman acted as agent for the defendant from sixty to eighty days, and was paid $ 175 for his services.

The water for furnishing the power was conducted to the mill from a mill-pond through a penstock or wooden canal, made in a cylindrical form and buried in the ground. This penstock had existed about twenty-five years. The penstock being decayed, Gilman set the plaintiff and others at work to uncover the earth from a portion of it for the purpose of making necessary repairs. The men excavated a trench over the penstock about eighteen feet long, from nine to twelve feet deep, from ten to twelve feet wide at the top, and from seven to nine feet wide at the bottom; and, while working on the bottom of the trench and on the top of the penstock, the penstock gave way and the sides of the trench caved in upon the plaintiff, and he received the injuries complained of.

It appeared that the trench was dug in very sandy soil, and there was evidence tending to show that the sides of the trench ought to have been sheathed or shored up with planks, and these planks secured in their places by cross braces; that there ought to have been a small platform made to extend across the penstock to the earth on each side, for the men to stand upon while at work; and that if such appliances, or either of said classes of appliances, had been used, the accident could not have happened. No sheathing or shoring, or platform of any kind or description, was used or furnished as a completed structure to be used in the trench.

The defendant and Gilman both testified that they did not furnish any planks or materials for the purpose of protecting the men, but there was a conflict of testimony whether there were any planks or materials on the premises suitable and proper to be so used. There was evidence tending to show that there was an abundance of materials,...