Granara v. Jacobs

• Decision Date: 17 June 1912
• Parties: GRANARA v. JACOBS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 271

98 N.E. 1029

GRANARA v. JACOBS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1912

COUNSEL Nason & Proctor and Jerome J. Pastene, for plaintiff.

Walter I. Badger and Wm. Harold Hitchcock, for defendants.

OPINION

SHELDON J.

The plaintiff was not entitled to recover upon his first count. That was at common law, and charged the defendants with negligence in the construction of the staging, the fall of which caused the plaintiff's injuries. But there was no evidence that the staging was constructed by the defendants or furnished by them for the plaintiff to use, or that the planks used in its construction were supplied by them. The plaintiff offered no such evidence, and that put in by the defendants tended merely to show that the staging was put up by other contractors with their own planks and for their own purposes. Nor could it have been found that the defendants had adopted the staging for the use of their servants or had directed the plaintiff or others of their servants to use it. Kennedy v. Spring, 160 Mass. 203, 35 N.E. 779; O'Connor v. Rich, 164 Mass. 560, 42 N.E. 111, 49 Am. St. Rep. 483; Brady v. Norcross, 172 Mass. 331 52 N.E. 528; Thompson v. Worcester, 184 Mass. 354 68 N.E. 833. For any negligence of their superintendent in sending the plaintiff or others upon it, they would not be liable at common law. Moody v. Hamilton Manuf. Co., 159 Mass. 70, 34 N.E. 185, 38 Am. St. Rep. 396; Flynn v Salem, 134 Mass. 351; Grebenstein v. Stone & Webster Engineering Co., 205 Mass. 431, 437, 91 N.E. 411.

The second count charged a defect in the ways, works or machinery of the defendants under R. L. c. 106, § 71, cl. 1, and St. 1909, c. 514, § 127, cl. 1. But such a structure as this, put up by a third person with his own materials for his own purposes, was not a part of the defendants' ways, works or machinery, even though occasionally used by their servants. Adasken v. Gilbert, 165 Mass. 443, 43 N.E. 199; McKay v. Hand, 168 Mass. 270, 47 N.E. 104; Nichols v. Boston & Maine Railroad, 206 Mass. 463, 92 N.E. 711.

There was evidence that the defendants' superintendent told the plaintiff to go upon this staging, and it has been argued that the order could have been found to be negligence in the superintendent, for which the defendants would be liable under clause 2 of the statute already cited. It would be hard to say that this conduct was negligent. No outward visible defect appeared on the planks; there was no crack or knot on any of them; they were simply discolored, not apparently weakened, from prior use. It was Solari's...