Harkins v. Standard Sugar Refinery

• Decision Date: 17 March 1877
• Parties: Owen K. Harkins, administrator, v. Standard Sugar Refinery
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 400

Owen K. Harkins, administrator, v. Standard Sugar Refinery

Supreme Court of Massachusetts

March 17, 1877

Argued November 17, 1876 [Syllabus Material]

Suffolk. Tort for a personal injury to the plaintiff's intestate. Trial in this court, before Lord, J., who reported the case for the consideration of the full court, in substance as follows:

It appeared that the defendant was the owner and occupant of premises used as its sugar refinery, and, at the time of the alleged injury, was adding an L to its main building.

Gustavus A. Jasper, called by the plaintiff, testified, that he was in the employ of the defendant, as superintendent of its business; that he drew the plans for the L and gave orders how to construct it; that he engaged the men who worked on the building, and the defendant paid them; that all the men who were employed on the work were employed by the day; that he paid the riggers, employed in raising the beams, four and five dollars a day, and a separate amount for their tools and rigging; that he paid one dollar a day to the master rigger for superintending; and that he gave the orders to the masons, riggers and other men, hurrying them up and telling them what to do. On cross-examination he testified, that he contracted orally with a master mason, to do the entire brickwork and furnish the necessary tools, and for that agreed to pay him a certain price per day for his men and for the use of his tools, and that he employed none of the men who worked under the mason, but that they were all hired by the latter; that he contracted in the same way with a carpenter to do the carpenter work, an iron founder to furnish the castings, machine shops to furnish the trusses and riggers to do all the hoisting and furnish all the rigging; that he selected none of the tools or any part of the rigging, and employed none of the men who were at work for the riggers; that the bargain with the riggers was that they should raise six trusses into place; that he gave no directions about hoisting these trusses; that he left entirely to the riggers the plan by which the falls upon the building were rigged; and that he was not familiar with the business of hoisting.

There was evidence tending to show that the plaintiff's intestate was one of the masons employed under the master mason; that, while he was at work upon the wall in his place among other masons, who were posted along the wall at intervals of a few feet from each other, a beam which was being raised by the riggers fell and struck him, causing severe injuries, from which he died twenty days after. The immediate cause of the falling of the beam was the breaking of the tackle, which the plaintiff contended was insufficient. The evidence tended to show, that the truss did not fall perpendicularly but diagonally, being held by a rope attached to a mast; that if it had fallen perpendicularly, it would not have fallen upon the plaintiff's intestate, but seven or eight feet from him; that the plaintiff's intestate at the time was looking down and in the act of laying bricks, and could not see the beam which had passed over and beyond the place at which he was at work; and that he had been at work at this place about ten minutes, and the beam had passed over the place before he went there.

The report then stated the evidence at length on the question of the sufficiency of the rope, which is not material to the point decided.

At the close of the plaintiff's evidence, the judge ordered a verdict for the defendant. If there was any evidence to warrant a verdict for the plaintiff, a new trial was to be ordered; otherwise, judgment was to be entered on the verdict.

Judgment on the verdict.

G. O Shattuck & J. A. Maxwell, for the plaintiff. 1. On the question whether the riggers were the servants of the defendant, the jury were at liberty to consider the fact that the testimony on which the plaintiff had to rely was that of a servant of the defendant, and, if there was any ambiguity or contradiction in his statement, to interpret it most favorably for the plaintiff. The work was going on on the defendant's land. The witness employed the master rigger to superintend that part of the work (just as the witness superintended the whole); he paid him a dollar a day for this, in addition to the daily pay, which he received, in common with the rest, from the defendant, as a workman. All the riggers received orders from the defendant, although, of course, they were under the more immediate eye of the person specially skilled in that business. The defendant paid for the use of the rigging and tools. These statements, which the jury might well have believed to set forth the true relation between the parties, bring the case within Stone v Codman, 15 Pick. 297; Johnson v. Boston, 118 Mass. 114, 117; Hilliard v. Richardson, 3 Gray 349, 351; Wiggett v. Fox, 11 Exch. 832; and Rourke v. White Moss Colliery Co. 1 C. P. D. 556. When the witness on cross-examination said he did not employ the riggers, he did not mean to testify to the conclusion of law that they were not the defendant's servants, but simply that he did not select the men in the first instance, as shown by his alternative expression that the master rigger "hired" them. But the defendant paid them, could have discharged them any day, and exercised the right to direct them. And how much he actually interfered is immaterial.

2. The defendant was having this building erected upon which the plaintiff's intestate was employed, and the undertaking between the parties was on the one side that the deceased should assume the ordinary manifest risks of his employment and on the...