Zeigler v. Day

• Decision Date: 15 September 1877
• Parties: John Zeigler v. Marcellus Day
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 152

John Zeigler v. Marcellus Day

Supreme Court of Massachusetts

September 15, 1877

Suffolk. Tort for personal injuries occasioned to the plaintiff, by the falling in of the sides of a sewer upon which he was at work while in the employ of the defendant who was a contractor. Trial in this court, before Lord, J who reported the case for the determination of the full court on the question whether the plaintiff, upon the evidence put in and offered, should become nonsuit, or the case stand for trial. The nature of the evidence introduced and offered appears in the opinion.

Plaintiff nonsuit.

G. S. Hale & W. Emery, for the plaintiff.

T. H. Sweetser & J. W. Hammond, for the defendant.

Colt, J. Endicott & Soule, JJ., absent.

OPINION

Colt, J.

To maintain this action the plaintiff must show a neglect of some duty on the part of the defendant, which he owed to the plaintiff while he was employed in his service, and which was the sole cause of the injury complained of. The plaintiff alleges that there was such neglect, either in not providing sufficient security against the caving in of a trench which he was digging for the defendant, or in not notifying him of danger connected with the work, of which the defendant was aware, but of which the plaintiff was ignorant. The plaintiff's evidence is made part of the report, and the question is whether that evidence, with "offers to prove an unsafe and defective system of construction," and that the defendant was present from time to time and had knowledge of the way in which the work was progressing, should have been submitted to the jury.

It appeared that the defendant had contracts for the construction of sewers through the streets of the city of Cambridge; that at the time of the accident the plaintiff was at work for him, digging for one of the sewers, through soil more or less sandy, under the direction of one Winning, who had charge of the work as superintendent, and whose skill and competency were admitted by the plaintiff. It did not appear that the defendant did any work himself on the sewer, or that he gave any directions to the men who were at work under Winning. For the safety of the men in the trench, it was necessary, in some dangerous places where the soil was loose, to place planks properly braced to keep the sides from falling in. The necessity for this, as well as the proper mode of applying the safeguards, was from the nature of the case left to be determined by the superintendent as the work of excavating and extending the sewer progressed. There was no evidence that the defendant failed to furnish sufficient and suitable material for the construction of the required safeguards, or that he was chargeable with any specific personal neglect, or knew of the cause of this injury. The offer of proof that the system of construction was unsafe and defective, and known to the defendant, in addition to the evidence reported, was an offer not to prove the existence of any fact inconsistent with or additional to those already in evidence, but to show that the general mode adopted was known to the defendant, and that he was therefore responsible for it.

If the negligence relied on to support the action was the negligence of a fellow servant while engaged in the same general business, or in a service which constituted part of the common employment, although it was a service of a higher grade, the plaintiff cannot recover. Such negligence is regarded as among the ordinary risks of the employment in which he was...