Mckay v. Hand

• Decision Date: 19 May 1897
• Citation: 168 Mass. 270,47 N.E. 104
• Parties: McKAY v. HAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 270

47 N.E. 104

McKAY v. HAND.

Supreme Judicial Court of Massachusetts, Norfolk.

May 19, 1897

COUNSEL

A.H. Russell, for plaintiff.

H.E Fales and S.H. Tyng, for defendant.

OPINION

FIELD C.J.

This is an action for personal injuries received in consequence of the breaking of a ladder on which the plaintiff was standing while engaged in the work of painting the outside of a house. The declaration as amended contained four counts,--the first three, under the employer's liability statutes; and the fourth, at common law. The presiding justice directed a verdict for the defendant, and to this the plaintiff excepted.

Three men, including the plaintiff, were employed by the defendant who furnished a load of ladders for the job; and one of the men selected two ladders, and the three spliced the ladders together, and then raised them against the house. The ladder known as the "butt" was about 22 feet long, and the other, known as the "tip," was about 12 feet long. The two ladders, when fastened together as they were first raised against the house, extended above the eaves of the roof, whereupon the foot of the ladders was pulled out about 12 feet from the outside of the house, so that the upper end of the ladders reached just beneath the coping of the roof. The plaintiff went up the ladders with a pot of paint in one hand and a paint brush in the other, when one of the ladders broke, and he fell to the ground and was injured. The evidence does not distinctly disclose which ladder broke, or how far up on the ladders the plaintiff was when the ladder broke; but we infer that he was near the top of the ladders that the ladder which broke was the one called the "butt," and that it broke on both sides near the upper end. There was no contention that the ladders were not properly fastened together, although they might have been so fastened as to make the whole length shorter, and this would have rendered it unnecessary to place the base so far from the house. There was evidence that the ladders, as they were placed, were not in a proper position for the work. Precisely what the danger was from the position of the ladders does not expressly appear. The plaintiff testified that it was not a proper way to place the ladders, but that, if the ladder had been sound, it would not have broken, in the position it was in. It is obvious that ladders placed at the incline these were would slip more easily on the ground than if they had been placed nearly perpendicularly to it, and that the ladders, placed as they were, would break more easily under the weight of a man than if they had been placed more nearly perpendicularly to the ground. It is equally obvious that the more the ladders were extended by splicing, the greater became the danger of their breaking under any given weight, if the ladders were supported only by the ends. The plaintiff had and expressed doubts of the strength of the ladders in the position they were in, but, being assured by one of the other men that they were safe, he mounted the ladders. It does not appear that the defendant was present while the men were at work. The plaintiff testified that the ladder which broke was painted, and, to all outward appearance, was a good ladder, and that, if he had known that the ladder was defective, he would have taken another ladder. The accident happened on May 10, 1894, and the only evidence of notice of the time, place, and cause of the...