Gagnon v. Dana

• Citation: 39 A. 982,69 N.H. 264
• Parties: GAGNON v. DANA et al.
• Decision Date: 11 March 1898
• Court: Supreme Court of New Hampshire

39 A. 982

69 N.H. 264

GAGNON

v. DANA et al.

Supreme Court of New Hampshire. Hillsboro.

March 11, 1898.

Exceptions from Hillsboro county.

Action by Frank Gagnon against Dana & Provost There was a judgment for plaintiff, and defendants excepted. Verdict set aside.

Case, for personal injuries resulting from the fall of a staging at the Sacred Heart Hospital, in Manchester, occasioned by the breaking of an unsound and decayed bracket. Verdict for the plaintiff. The plaintiff is a carpenter of many years' experience, and fully understood all the duties and risks incident to that employment, one of which is the putting up of wall brackets to support the staging on which he is to work. The work on the hospital was done by one Bradley, the owner of the property, who employed one Gay to superintend the work, hire and pay the men, and buy the materials. In the performance of these duties, Gay went to the defendants, and engaged St. Lawrence, their superintendent, and all the other men in their employ, one of whom was the plaintiff, under an arrangement by which the defendants were to receive the same wages as the men were then receiving, and 25 cents a day additional for each man furnished by them; and the men went to work on the hospital accordingly. The defendants were not employed on the building, and had nothing to do with it, aside from the letting of their men. By Gay's direction, St. Lawrence acted as foreman of all the men on the job, and kept their time, and reported the same to Gay, who kept the pay roll, paid the men directly hired by him, and also paid the defendants in a lump sum for the men furnished by them. Not having a sufficient number of wall brackets for stagings, Gay subsequently borrowed of the defendants about 90 of their brackets, which were used by the men on the job. These brackets were loaned to Gay gratuitously, and merely as an accommodation to him, and the loan had nothing to do with the original contract of hiring the defendants' men. The staging on which the accident happened was built by the plaintiff and one Dana, a fellow workman. It was about 14 feet from the ground, and in front of a bay window. The brackets were placed an the building at each side of the window, and a plank about a foot wide, 2 inches thick, and 14 feet long made the staging. The plank touched the window, and was on the outside part of the bracket, within 6 inches of the end of it. While Dana and the plaintiff were on the plank, one of the brackets broke at a point just outside the brace, and the plaintiff fell to the ground, stunned and seriously injured. He testified that the staging looked all right. Several witnesses for the plaintiff testified that they heard the defendant Dana say soon after the accident that he knew some of the brackets were old and unsound, and that he told St. Lawrence to pick them out, and not to use them. This was denied by Dana and by St. Lawrence, and Dana further testified that he knew of no unsoundness in the brackets when they were loaned. At the close of the plaintiff's evidence a motion for a nonsuit was denied, subject to exception. At the close of the evidence in the case the motion was renewed by the defendants, who also moved that a verdict be directed for them. The motions were denied. Among other things, the court instructed the jury that a master is not liable unless he knew, or ought to have known, of the defect that caused the injury to his servant; that if the defendants knew, or ought to have known, that the bracket was unsafe, they would be liable; and that it was not material whether anything was paid for the use of the bracket, or not,—to all which the defendants excepted. They also asked for the following, among other, instructions, and excepted to the refusal to give them: "(1) When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him. (2) At the time of the accident the plaintiff was performing work for Denis M. Bradley, under the control and direction of his superintendent, Alpheus Gay. At that time he was not under the control and direction of Dana & Provost, and for the purposes of this case he was not their servant. (3) The fact that the plaintiff received his wages from Dana & Provost is immaterial. The plaintiff being the servant of Bradley, it became the duty of Bradley to furnish suitable brackets and appliances to work with. (4) A lender of anything is not liable to the borrower on account of its unsafe condition, unless the lender at the time of the loan had actual knowledge of the defect. (5) If the plaintiff used this bracket in a way for which it was not intended to be used, or in a way for which Dana & Provost would not expect it to be used, he cannot recover. (6) If the plaintiff could have discovered about this bracket all that Dana & Provost could have discovered by inspection, he cannot...