Nichols v. Boston & M.R.r.

• Decision Date: 18 October 1910
• Citation: 92 N.E. 711,206 Mass. 463
• Parties: NICHOLS v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 463

92 N.E. 711

NICHOLS v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Worcester.

October 18, 1910

Oct 18, 1910.

COUNSEL

David I. & Thos. L. Walsh, for plaintiff.

C. M Thayer and Alex. H. Bullock, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff, a painter, brings this suit to recover damages for injuries caused by falling from a staging upon which he was standing while painting the outside of a car. The car in question was in the repair shop to have some work done upon it by carpenters and painters. Two carpenters who were at work upon the car had constructed a staging in the following way: A wooden horse was placed at one corner of the car, another horse was placed at one side of the door in the car, the door being in the center, a third horse was placed on the other side of the door and a fourth horse at the other corner of the car. Upon the top of each one of these horses a wooden block was placed, in order that the plank upon which the carpenters were to stand might be raised higher than it would stand if it rested on the top of the horse. Upon the top of these blocks one plank was placed, which rested on the block on the first corner horse and on the block on the horse next to it. A second plank rested on the block on the horse at the other corner and on the horse nearest to it. This left a space between the middle horse, in front of the door, without any plank. A plank was then placed resting upon the horses on either side of the door, thus making a continuous staging along the side of the car. After the carpenters has been using this staging for about two weeks, they finished their work on the side of the car, and were working on the roof the day before the accident. On that day another carpenter, who was working on a car near by, asked the carpenters on the roof if they were through with the staging and if he could take a plank. They said that they were, and he removed the plank which connected the horses that were on either side of the door, and, after using it, left it on the ground a short distance from the car. This was the condition of the staging when the plaintiff began the work of painting the outside of the car. He began at one corner and painted until he reached a point where the sliding door in the freight car had to be closed in order to enable him to paint that part of the car which was back of the door. While on the staging he attempted to shut the door, and while pushing against the door the staging fell, causing the injury for which this suit is brought. It is not contended that any of the planks, the horses, or the blocks that were used in the construction of the staging were defective. It also appeared that horses and planks and blocks were arranged in the same way upon the opposite side of the car, except that the plank before the door had not been removed. The horses at the four corners of the car projected a little beyond the respective corners, and planks were laid upon them, across each end of the car, so that while the carpenters were at work before the plank was removed there was a continuous staging around the car.

Upon the undisputed testimony of numerous witnesses it appeared that there were horses and planks for these uses in various places all over the shop, and there was evidence that blocks were often used by the carpenters, on top of horses, to make the staging higher. There was also uncontradicted testimony from these witnesses that it was the duty of the different classes of workmen employed upon a car at different stages of the work to provide staging for themselves from the materials at hand, so far as they needed them. These materials, so used, were never nailed or fastened together, but the horses were set up with or without blocks upon them, and the planks were laid upon them. As the carpenters were the first workmen employed upon the body of the car, they found it necessary to use these materials for the construction of a staging, and often the whole or a part of the materials would be left standing by the car, and afterwards be used by painters, tinners or others who succeeded them, who thereby saved themselves the trouble of getting materials elsewhere, and putting them in place. Witnesses also testified that it was no part of the duty of the carpenters to construct stagings for the use of other workmen. All this was uncontradicted. The judge in his charge said: 'You will bear in mind, gentlemen of the jury, that there was no obligation on the part of the carpenters to construct a staging for the painter.' There was no evidence that anybody else than the carpenters provided or ever undertook to provide a staging for any of the painters or other workmen. The plaintiff's case rests entirely upon the fact that he was injured on a staging constructed by carpenters for their own use, from which a plank had been removed by another carpenter for his use elsewhere.

The plaintiff's own testimony, which is reported by question and answer, did not contradict the testimony of the others on this point. He testified as follows:

'Q. Did you ever construct any staging out of horses or planks, around in the freight yard in that establishment, before the date of this injury? A. No, sir; not a continuous staging around a car.

'Q. What appliance did you use when you did not need a continuous staging? A I used a horse and planks or ladder chiefly, as occasion required.

'Q. So that you had to use a ladder or horse? A. Sometimes get upon the horse; sometimes, if a space eight or ten feet to be painted, I would place a horse here and a horse there, and put a plank up and paint on that staging until I finished the job.

'Q. But never had occasion, and never did prepare a continuous staging? A. No, sir; wasn't my business.'

This negation was only as to the construction of a continuous staging around a car; but it is apparent, as was testified by the witness Bigelow, that for a painter to build a continuous staging around a car would not be a convenient way of doing the...