Reardon v. Byrne

• Decision Date: 02 April 1907
• Citation: 195 Mass. 146,80 N.E. 827
• Parties: REARDON v. BYRNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 146

80 N.E. 827

REARDON v. BYRNE.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1907

The court submitted the case to the jury on the third and fifth counts, which were as follows:

Count 3: 'And the plaintiff says that on or about May 6, 1905 he was in the employ of the defendant, doing general laboring work; that it was the duty of the defendant to give him proper and sufficent warning, and instructions regarding the dangers attending his said work, of which the plaintiff did not know, and which the defendant well knew, or in the exercise of reasonable care ought to have known; that by reason of this failure on the part of the defendant the plaintiff, while in said employ, being at the time in the exercise of due care, was hurt, and injured and suffered pain of body and anguish of mind.'

Count 5: 'And the plaintiff says that on or about May 6, 1905 he was in the employ of the defendant, doing general laboring work; that by reason of the negligence of some person in the service of the defendant, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, the plaintiff, while in said employ, and in the discharge of his duties in said employ, being at the time in the exercise of due care, was hurt, and injured and suffered pain of body and anguish of mind; that due notice of the time, place, and cause of said injury was given to the defendant.'

The rulings requested by the defendant were in substance that on the evidence plaintiff was not entitled to recover; that there was no evidence of negligence on the part of the defendant, or of negligence of any person in the service of the defendant intrusted with and exercising superintendence and that there was no evidence of negligence of a person acting as superintendent, in the absence of a superintendent with authority or consent of the defendant, and that the plaintiff could not recover on that ground; and that a verdict be ordered for the defendant. The court refused all the requests, and submitted the case to the jury on the two counts.

COUNSEL

George Holden Tinkham and Simon E. Duffin, for plaintiff.

Dickson and Knowles, for defendant.

OPINION

BRALEY J.

It was undisputed that the plaintiff having been employed as a common laborer in putting in the foundations of the building on the morning of the day of the accident was told by the defendant to assist in putting up the iron work of the superstructure. In pursuance of this order, he reported to the foreman, one McMay, who told him 'to go back in the rear end of the building and tighten up bolts.' From the recitals in the exceptions iron beams had been placed in position with their ends resting on the tops of iron columns, through the caps of which, and in the flanges of the beams, bolts were placed. The plaintiff, who was wholly inexperienced, after instructions by the foreman, was put to work 'tightening up' the bolts by screwing the nuts down so that the beams would be securely held. He began work about 11 o'clock, when at about half past 3 he was called to assist in putting in position two of these beams. They were put up in pairs, and after being set were kept a certain distance apart, and held together by 'spreaders' or braces. In their erection the braces were adjusted to one beam by a bolt running through the beam and spreader, and after this beam was put up, the second was laid, and the bolt pushed through a corresponding hole, and a nut put on which upon being set up brought the beams and braces solidly together. These beams, with the assistance of the plaintiff, had been safely raised and the brace or braces adjusted, when the foreman discovered that one beam must be reversed and ordered that it be turned over. To do this, it became necessary to unloosen the bolts which held the braces, and draw them back clear of the beam which was to be reversed. This was done, but in turning the beam in some way not clearly shown, it either struck the other, causing it to fall with the spreaders, or hit a spreader,...