Carroll v. Willcutt , 163 Mass. 221 ( 1895 )

Barker, J.

The plaintiff cannot recover upon the first count. There was no defect in the material, plan, or construction of the staging, and the presence of the stone upon it was not a defect in ways, works, or machinery, within the meaning of the statute. St. 1887, c. 270. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. Lynch v. Allyn, 160 Mass. 248, 252. Burns v. Washburn, 160 Mass. 457.

While the jury might have found that the sole or principal duty of the defendant’s foreman was that of superintendence, we are of opinion that the evidence did not justify a finding that the foreman was negligent in not discovering that the ledge stone was so placed as to be liable to fall. The case is in some respects similar to McCauley v. Norcross, 155 Mass. 584, on which the plaintiff relies, but in that case the building was much nearer to completion than in this, and the opening through which the beam fell was one designed for the use of the workmen, having been left in the floor for the purpose of occasionally hauling up materials and to enable workmen to fasten the ropes of a derrick to iron columns above. And in that case the evidence tended to show that the superintendent had occasion to visit the part of the building where the opening was. It is not the same thing to say that a lack of due and proper superintendence may be inferred from leaving in the same position for two or three days iron beams so placed near such an opening, which workmen -were expected to use, that one of them would be liable from a slight inadvertent push of the foot of a passer by to fall through the hole, as to say that such a lack may be inferred from leaving a ledge stone upon a staging used in building one of the walls of a church, the floors of which were not in and the roof of which was not on.

We do not think, in the absence of evidence that the stone had been so placed by any specific order of the foreman, or that he had had occasion to visit that part of the work while the stone was there or had actual knowledge that the stone was left upon the staging, and in view of the fact that how much of the stone projected could only be seen from above, that the mere fact that a stone had been left for two or three days with such a considerable portion of it projecting beyond the staging as to make it liable to fall if it should be hit, or if the staging should be jarred in the prosecution of the work, would justify a finding that the foreman was negligent in exercising superintendence.

This view of the case makes it unnecessary to consider whether the evidence shows that the plaintiff was himself in the exercise of ordinary care in placing himself where he did.

Exceptions overruled.