Kennedy v. Spring

• Decision Date: 29 November 1893
• Parties: KENNEDY v. SPRING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 203

35 N.E. 779

KENNEDY v. SPRING.

Supreme Judicial Court of Massachusetts, Worcester.

November 29, 1893

COUNSEL

W.S.B. Hopkins, Thos. F. Gallagher, and Frank Bulkeley Smith, for plaintiff.

Chas F. Baker and Herbert Parker, for defendant.

OPINION

LATHROP, J.

This is an action of tort for personal injuries sustained by the plaintiff while in the defendant's employ, by reason of his falling from a staging upon the roof of a house, which was put up for the purpose of building a chimney. The declaration contained two counts,--the first at common law, and the second under St.1887, c. 270, § 1, cl. 1. At the close of the evidence the judge who presided at the trial required the plaintiff to elect upon which count he would proceed. The plaintiff elected to proceed upon the first count. The judge thereupon, at the request of the defendant ruled that there was no evidence which would warrant a jury in returning a verdict for the plaintiff; and the case comes before us on the plaintiff's exceptions to this ruling, and to the exclusion of certain evidence offered by him.

As no exception was taken to the ruling requiring the plaintiff to elect upon which count he would proceed, the only question on the first branch of the case is whether the evidence makes out a case at common law. The evidence shows that the plaintiff, who was employed as a mason's tender, was sent by the defendant to the house of one Earl to "tend" the defendant's son Walter. The son was then building a staging on the roof of the house. The son called to the plaintiff to bring up two stay boards to hold the staging from swinging. This the plaintiff did, and later handed the son some planks which were upon the roof. After the staging was completed, one of the cross-pieces broke, and the plaintiff fell to the ground and was injured. The plaintiff testified that he had been a mason's tender for four years, and had acted as such in the building of chimneys that he had repeatedly taken part in the building of stagings; that he saw the stay board fastened, one end on the roof, and one on the scaffold; that he saw how the staging was built, and the kind of timbers used, and knew exactly how it was built, and exactly how large the timbers were. The plaintiff further testified that the stay boards which he selected to put into the staging were not from the timbers which the defendant had brought to the place for purposes of building, but were taken from another place. In answer to the question whether they were strong enough, he testified: "They just held the staging from rocking." The examination then proceeded as follows: "Qu. They did not hold it? Ans. They did not hold it up. Qu. And so the staging came down? Ans. Yes." As, however, the plaintiff had previously testified that he did not carry up the crosspiece which broke, we do not think the judge had a right to assume that the defective timber which...