Twomey v. Swift

• Decision Date: 02 March 1895
• Citation: 39 N.E. 1018,163 Mass. 273
• Parties: TWOMEY v. SWIFT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 273

39 N.E. 1018

TWOMEY v. SWIFT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1895

COUNSEL

Allin &amp Mayberry, for plaintiff.

Freedom Hutchinson, for defendants.

OPINION

FIELD C.J.

This is an action at common law. The plaintiff, a carpenter, was injured by the fall of a staging on which he was standing when at work for the defendants. The defendants were erecting an ice house, but were not personally directing the work. They employed a suitable superintendent, who had under him a large number of workmen. The cause of the fall of the staging was that a piece of board called a "ledger board" broke, on which, as a cross piece, the plank rested on which the plaintiff stood. This ledger board was about four or five feet long, six inches wide, and seven-eighths of an inch thick, and was fastened at one end to a cleat nailed to the side of the building, and at the other end to an upright post. It was a piece of hemlock board, somewhat crossgrained. There was evidence that hemlock boards of the thickness of seven-eighths of an inch, but of different widths, were the only materials furnished by the defendants which could properly be used for the support of the planks which formed the floor of the staging. The accident happened on the 4th day of February, which was a cold, blustering day. There was evidence that hemlock boards of the thickness of seven-eighths of an inch are not suitable material for the construction of stagings; that hemlock boards are usually of coarse grain; that in cold, wet weather they readily fill with moisture and freeze, and become very brittle; that when filled with frost it is difficult to detect the grain; that they are not as strong as spruce or pine or many other kinds of lumber, and are not commonly used for staging, particularly in cold weather. It probably is true that hemlock lumber may be selected large enough and of such quality as to make a reasonably safe staging in any season of the year, but there was evidence not objected to that a carpenter of ordinary skill might not know the great danger of using hemlock boards as supports in the construction of stagings. The defendants rely upon Kennedy v. Spring, 160 Mass. 203, 35 N.E. 779; Thyng v. Railroad Co., 156 Mass. 13, 30 N.E. 169; Hoppin v. Worcester, 140 Mass. 222, 2 N.E. 779; Johnson v. Towboat Co., 135 Mass. 209; Killea v. Faxon, 125 Mass. 485; Kelley v Norcross, 121 Mass. 508; and other similar ...