Summersell v. Fish

• Decision Date: 20 March 1875
• Citation: 117 Mass. 312
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George Summersell v. Henry H. Fish & others

117 Mass. 312

George Summersell v. Henry H. Fish & others

Supreme Court of Massachusetts

March 20, 1875

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Suffolk. Tort for personal injuries sustained by the fall of a derrick, which the declaration alleged "the defendants negligently and carelessly raised, and made no proper arrangements to prevent its falling on the men engaged in raising." Trial in this court before Endicott, J., who allowed a bill of exceptions in substance as follows:

The defendants were erecting a large building in Taunton. The plaintiff was a carpenter in their employ. Jabez Brown was the defendants' foreman, and had been in the defendants employ a year, and was in charge of the carpenters employed on the building. The defendants had purchased a large derrick, weighing about half a ton, consisting substantially of a post about twenty-seven feet high and eight inches square, kept in an upright position by a frame-work at its foot, and moving on trucks; across the upright post, about eighteen inches from the top, was bolted a cleat about two feet long, five inches wide and three inches thick. This derrick was used for hoisting beams to their places, and for this purpose it was run along from beam to beam, and, as occasion required, hoisted from story to story when in use. The manner of raising said derrick was by applying a tackle to the top of the upright post and hauling it down, while at the same time men on the lower floor lifted it up; and when sufficiently high it was bent down to a level with the upper floor and hauled in.

In November, 1872, Brown called in the plaintiff and other workmen to raise the derrick from one story of said building to another. Brown stood at first on the upper floor and directed one of the carpenters to attach the tackle by putting a chain twice round the upper part of the post above the cleat and hooking the tackle into both parts of the chain. The man who hooked the tackle testified that Brown looked at him while doing so and expressly directed him how to attach it. This was not denied. After the derrick had been raised a short distance it fell, but not from the same cause as the fall at the time of the accident to the plaintiff, and the foreman went down to the lower floor and directed the men to hoist again. The plaintiff and other men lifted below, and those above hauled on the tackle, thus raising and inclining the derrick. An alarm was given and the foreman shouted to the men to leave, and immediately after, the chain slipped from the top of the derrick, and it fell, severely injuring the plaintiff, the other men escaping.

Evidence was offered on both sides as to the manner in which the derrick could have been raised, and whether it and the appliances connected with it were suitable for the purposes intended, and whether it was raised properly. One of the defendants testified that he purchased the derrick, and another that he had seen it in use in said building several times before the accident. The evidence on the question of the plaintiff's own due care was conflicting.

The plaintiff's counsel in opening the case stated, that in carrying on their work of erecting the building the defendants employed Brown as foreman; they made no question of his competency, but claimed that he was the defendants' agent, and that they were responsible for his acts; that the negligence upon which they relied was the omission of the defendants to provide a ring bolt or some similar contrivance near the top of the derrick to fasten to, when the derrick was to be raised from one floor to another.

There was no evidence in the case having any tendency to show that Brown was not a competent man to perform the services required of him, except such inferences as might be drawn from the manner in which he directed the raising of the derrick at the time of the accident, and no evidence of any want of care on the part of the defendants in the employment of Brown as foreman. At the close of the evidence the plaintiff waived his claim that Brown was the defendants' agent, and admitted that Brown and the plaintiff were fellow workmen. No allusion was made at the trial to the question of Brown's competency, or to any want of care on the part of the defendants in employing him as foreman after the opening statement, until the closing argument of the plaintiff's counsel, who then claimed to argue that the evidence showed that the foreman was incompetent, and that the defendants knew, or with due care might have known, of his incompetency to manage the derrick, and were liable. The defendants' counsel objected that under the pleadings, the opening statement of the plaintiff's counsel, the absence of any evidence that the defendants had not used due care in the selection of a foreman, and the absence of any evidence that Brown was not a competent man for his employment, except such inferences as might be drawn from the manner in which he was causing the derrick to be raised at the time of the accident, the question of the defendants' negligence in the employment of a foreman was not open. The judge sustained the objection, and ruled that under the pleadings this question was not open to the jury; but even if it was open under the pleadings he should not admit the argument after the opening statement, and in the absence of evidence at this stage of the case.

The jury were instructed as to the duty of the defendants in furnishing suitable machinery, tools and appliances for carrying on the work in which the...