Gurney v. Le Baron

• Decision Date: 05 January 1903
• Citation: 182 Mass. 368,65 N.E. 789
• Parties: GURNEY v. LE BARON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 368

65 N.E. 789

GURNEY v. LE BARON.

Supreme Judicial Court of Massachusetts, Plymouth.

January 5, 1903

COUNSEL

W. C. Parker and E. D. Stetson, for plaintiff.

L. E Chamberlain, E. H. Fletcher, and J. C. Sullivan, for defendant.

OPINION

BARKER J.

After a verdict for the plaintiff, rendered at a trial in which the case went to a jury with full instructions, to which no exception was taken by either party, the question is brought here by a report made by the presiding judge,--whether, upon all the evidence, the case should have been submitted to the jury; the defendant contending that a verdict should have been ordered in his favor.

The defendant owned an unfinished icehouse, and the work in hand was the putting on of the rafters. The side walls were 26 feet high, and connected by tiebeams at the top. The walls had been put up in January, and it was August when the rafters were to the put on. Shortly before the day of the accident, the defendant himself, with one workman (not the plaintiff), had placed uprights under several of the tiebeams. The office of the uprights was to raise the tiebeams to a level, so as to take out the sag of the side walls, and also to enable the tiebeams to serve to hold a temporary floor on which workmen could stand while nailing together and putting up rafters for the roof. One, at least, of the uprights was spliced in such a way as to be a dangerous appliance for the purposes for which it was put in position. The temporary flooring was made of planks which were afterwards to be nailed to the rafters, as part of the roof, after the rafters should be raised. The evidence tended to show that while the first set of rafters was being raised the splice broke, and the tiebeam above broke and fell with the planking on which the plaintiff was at work. The defendant himself was present and in general charge on the morning of the accident. There was no dispute that the plaintiff assisted in the selection of the planks, and in the placing of them upon the tiebeams to form the temporary flooring, nor that there was in and about the building material with which the supports of the flooring could have been made secure. The plaintiff testified that the question whether the upright props were strong enough came up in his mind, and that he did not take pains to satisfy himself whether they were strong enough or not. But he also testified that the nearest that he went to them before laying the planks was 75 feet, that they were rushing along the staging to get the rafters on, and that he was under orders; that he did not think he was called on to exercise his own judgment and that he trusted to the defendant, and to the defendant's ability. Both the fact that the upright which gave way was spliced, and the manner in which the splice was made, were open and...