Haakensen v. Burgess Sulphite Fibre Co.

If the defendants undertook to furnish the staging as a completed structure for the plaintiff to work upon, it was their duty to see that it was reasonably safe and suitable for the purpose for which it was intended. In such case their duty would be a personal one, for the negligent performance of which they could not escape liability by delegating its execution to servants or agents. Thompson v. Bartlett, 71 N.H. 174; English v. Amidon, 72 N.H. 301; Lambert v. Company, 72 Vt. 278, 282; Arkerson v. Dennison, 117 Mass. 407, 412; Callahan v. Academy, 180 Mass. 183; McCone v. Gallagher, 16 N. Y. App. Div. 272, 279, 280; Richards v. Hayes, 17 N. Y. App. Div. 422; Chicago etc. R. R. v. Maroney, 170 Ill. 520, 524; Cadden v. Company, 88 Wis. 409, 417.

On the other hand, if the defendants did not undertake to furnish the staging as a completed structure, but it was either expressly or impliedly agreed that the plaintiff and the men employed with him should build the staging as a part of the work they had undertaken to do, then the duty resting upon the defendants was that of using reasonable care in providing materials suitable in quantity and quality for the object in view and in employing suitable men to do the work. Robichaud v. Mendell, 75 N.H. 391; McLaine v. Company, 71 N.H. 294; Manning v. Manchester Mills, 70 N.H. 582.

It is thus apparent that the application of the legal principles involved in either of the above propositions depends upon the determination of the question, whether the defendants undertook to furnish the staging as a completed structure, or whether it was understood that the plaintiff and the men employed with him to lay brick should also build the staging as an incident of their work. This question, like all questions of fact, is to be determined by the jury upon evidence (McGill v. Company, 70 N.H. 125, 129; Donnelly v. Company,90 Me. 110, 116, 117; 2 Labatt M. S. 1780, 1784); and as the evidence in this case is conflicting, to say the least, it cannot be held as a matter of law that the defendants did not undertake to provide the staging as a completed structure.

There remains to be considered the further question, whether there was any evidence from which reasonable men could find that the staging furnished was unsuitable and that the plaintiff's injury was attributable thereto. It appeared that the ledger-board, or support upon which the putlogs rested at one end of the staging, was spliced at a point about half-way between the eight-by-ten posts to which it was nailed; that the distance between these posts was six to eight feet; that a ledger-board of this nature was unsuitable; that a staging constructed with such a support would fall eight or nine times out of ten, when put to use; that this staging fell almost as soon as the plaintiff and one of the masons engaged with him went upon it, causing them to be thrown to the floor below; and that had the ledger-board been suitable, the staging would not have fallen. We are therefore of the opinion that reasonable men might find from this evidence that the fall of the staging was due to the defective ledger-board and that the plaintiff's injury was attributable thereto.

Exception overruled.

PARSONS, C.J., and YOUNG, J., found no evidence that the defect in the ledger-board caused the injury: the others concurred.