Woodbury v. Post

• Decision Date: 19 January 1893
• Citation: 33 N.E. 86,158 Mass. 140
• Parties: WOODBURY et al. v. POST et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 140

33 N.E. 86

WOODBURY et al. v. POST et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 19, 1893

Plaintiffs' declaration and the demurrer thereto are as follows:

"First count. And the plaintiffs say that on or about October 16 1890, they were engaged as contractors in erecting a building known as the 'New Public Library Building,' in Boston, in said county of Suffolk; that at and about said date they were owners of certain derricks, and the appliances of said derricks, used in the construction of said building; that on and about said 16th day of October, 1890, the defendants were engaged as independent contractors in placing iron roof trusses in said building; that on or about June 13, 1890, the defendants entered into a good and valid written contract with the plaintiffs, by means of certain letters, copies of which are hereto annexed and made a part of this declaration; that on and about said 16th day of October 1890, the aforesaid contract was in full force, and binding upon said parties; that on said 16th day of October, 1890 while the defendants were using one of said derricks, said derrick and its appliances (and especially a pair of sister hooks, which were connected with and helped to support one of the guy ropes of the derrick so in use by the defendants) broke and gave way, and by so breaking and giving way caused bodily injuries to Christopher C. Grover, from which he died, and caused great bodily injuries also to Daniel Marr and to J.H. Mills; that said breaking and giving way of said derrick and its appliances were caused by the unsound, unsafe, and defective condition of said derrick and its appliances, of which unsound, unsafe, and defective condition the plaintiffs well knew, or by the exercise of due care ought to have known; that said injured parties did not know, and by the exercise of reasonable diligence and care would not have known, of said unsound, unsafe, and defective condition; that the plaintiffs knew, or ought to have known, that the use by the defendants of said derrick in said condition would cause injury to persons working near said derrick, but that the plaintiffs, well knowing that the defendants were using, or were about to use, said derrick, negligently ordered and allowed said injured parties to work for them in a place that was dangerous, owing to said unsound, unsafe, and defective condition of said derrick and its appliances, and owing to the use by the defendants of said derrick and appliances in the condition aforesaid, and did not warn said injured parties of the danger, and that the injuries aforesaid were caused by the negligence of the plaintiffs in so ordering and allowing said parties to work in a dangerous place as aforesaid, and by the negligence of the plaintiffs in not warning said injured parties of the danger of working near said derrick, while it was being operated by the defendants as aforesaid; that all these injured parties, at the time of their injuries aforesaid, were in the exercise of due care, and were regularly performing the duties of their employment, as employes of the plaintiffs; that the plaintiffs were legally liable to said injured parties for all injuries sustained by them as aforesaid; that the widow and administrator of said Grover, and the said Marr and Mills, gave notice of their said injuries to the plaintiffs, demanded payment for their injuries, and threatened to sue to recover for the same; that the plaintiffs, within twenty-eight days after said accident, paid by way of compromise, and in order to settle the aforesaid claims, and in order to secure releases from the aforesaid parties, to the widow and administrator of said Christopher C. Grover sixteen hundred dollars, to said Daniel Marr two hundred dollars, to said J.H. Mills thirty-seven dollars and fifty cents; and these sums were reasonable amounts to pay in settlement of said claims. And the plaintiffs say that immediately after the aforesaid accident they gave notice to the defendants that the accident had happened as aforesaid, and that the defendants were liable therefor under their contract of indemnity; that the defendants refused to settle the claims, and the plaintiffs, before settling the claims as aforesaid, gave reasonable notice to the defendants that they intended so to settle them. Wherefore," etc.

The second count contained similar allegations, but substituted the knowledge and negligence of plaintiffs' superintendent for that of plaintiffs themselves.

The letters referred to above are as follows:

"Boston, June 7, 1890. Messrs. Post & McCord, New York--Dear Sirs: We will allow you to use our engines and derricks at the public library at the price of one dollar for an engine and derrick for a time not exceeding one hour, and at the rate of one dollar per hour for any longer period. This arrangement to continue while we are using derricks at the library. You are also to pay us, in addition, for the engineer and

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