Fournier v. Pike

• Decision Date: 24 March 1904
• Docket Number: 1,349.
• Parties: FOURNIER v. PIKE.
• Court: U.S. District Court — District of Massachusetts

128 F. 991

FOURNIER v. PIKE.

No. 1,349.

United States Circuit Court, D. Massachusetts.

March 24, 1904

Norman F. Hesseltine and Amos W. Shepard, for plaintiff.

Knox Coulson & Currier, for defendant.

PUTNAM Circuit Judge.

This is a motion for a new trial by the plaintiff, the verdict having been rendered for the defendant. The motion contains several alleged grounds therefor which were not insisted on before us, and which, therefore, need not be noticed. Those insisted on are alleged improper charge to the jury not in the presence of the plaintiff's counsel, and errors of law in the charge and instructions to the jury which prejudiced the jury against the plaintiff With reference to the alleged improper charge to the jury in the absence of plaintiff's counsel, all that is now said about that is as follows:

'I trust that your honor will appreciate my embarrassment in reference to what was charged the jury when I was not present, and if your honor is sure of just what was said there is nothing to be said on this point.'

This relates to prior informal conversations between counsel and court in regard to this particular topic. On the occasion referred to, the jury desired some explanation by the judge and they were allowed to come into court for that purpose. It is neither the practice of this court, nor is it its duty, to send for counsel on such occasions, it being clearly the duty of counsel to remain in attendance until the jury is discharged with reference to a to a verdict. The practice of the presiding judge, however, is either to send for counsel if not in attendance, or to decline in their absence to do more than answer some questions with reference to mere formalities, or to make some observation in the precise language contained in the charge, or possibly some observation as to which there can be absolutely no question. At the time, it transpired that a gentleman who is in the office of the counsel for the plaintiff was in court on the occasion to which the plaintiff refers, and he heard all that was said. Nevertheless the court was not advised of any question in reference thereto until some weeks afterwards. The matter then being brought to the attention of the court, the court was at that time clear in its recollection that it had not departed from its usual practice, but observed to the plaintiff's counsel that, having been informed immediately of what had taken place, he should have brought the matter to the attention of the court promptly if he made any question in reference thereto. Under the circumstances, the court considered itself justified in dismissing the matter from any further consideration, and is still satisfied that it did not injustice, and gave no ground for complaint. This being a matter somewhat personal to the presiding judge, he desires to add that, on the conclusion of all that was said on this topic, plaintiff's counsel expressed himself as fully satisfied in reference thereto.

The other propositions made in the motion for new trial relate to matters as to which the plaintiff had saved exceptions, and he could have had ample relief by writ of error in case any exceptions were well taken. The plaintiff, however, desires this court to pass upon them, and, in accordance with paragraph 2 of our rule 15, he expressly waives all exceptions. As, therefore, our decision, in the event it should be adverse to the plaintiff, would be final as against him, we have held the plaintiff's propositions under advisement, and given them careful consideration.

The propositions of law which the plaintiff has in view in this motion are not raised on the face of the pleadings. The plaintiff's declaration alleged that he was employed as a laborer by the defendant in the erection of a factory building, and, while so employed, and in the line of his duty, he was engaged in carrying stone across the floor of the structure, and, while so engaged, owing to the negligence of the defendant in not providing proper and safe flooring over the elevator well, over which the stones were to be moved, he was, by the breaking of the flooring, precipitated down into the well, and severely injured.

Growing out of the fact that the plaintiff was employed in or about the erection of a building, it appeared that the floor to which the allegations of the declaration relate was constructed by merely laying down temporarily certain planks crossing the elevator well referred to. This planks were analogous to temporary stagings used in the constructions or repair of of buildings. Of course, without reviewing the authorities, we can say that it is well settled that the rule with reference to providing a suitable and safe place for the use of employes does not apply to buildings in course of erection or under repair, in the same way as to those which are complete and in use for practical purposes. Whether temporary floorings are safe depends on the changing uses to which they are put. Such temporary supports are mainly constructed according to the judgment of the mechanics engaged on the premises, and the employer is therefor not under the same obligations in reference thereto as in regard to structures in buildings which are supposed to be completed or in order; but, aside from that, in view of the fact that the contingencies of construction or repair are constantly changing, it is ordinarily impossible for employers to foresee all the purposes to which temporary supports may be applied, and to hold them in readiness therefor. In the present case, the work out of which the injury occurred, and the use of the flooring complained of, were under the eye of one Challis, who apparently was in charge of several gangs of laborers in and about the premises, engaged in the work of construction.

The propositions in behalf of the plaintiff are that Challis was not a mere foreman, but a superintendent and vice principal and that, whether what was done was done by his order or through his negligence, the defendant was responsible therefor. In behalf of the defendant, it is claimed that the accident occurred in connection with the movement of some dimension stones, which Challis had directed to be moved over the elevator well on rollers; that, prior to the stone which was being moved when the injury occurred, the stones had been moved by the rollers, and with perfect safety; that the flooring was entirely safe for the use of rollers; that, contrary to orders given by Challis, the gang of laborers, which included the plaintiff, used a truck, instead of rollers, for the particular stone which was being moved when the injury occurred; that the central plants were of oak, and sufficiently strong, but were narrow; that adjacent to the central planks were thinner planks of spruce or pine, which were weak; that, through fault on the part of the laborers, including the plaintiff, the wheels...