Duffy v. Upton

Colt, J. The declaration substantially charges that the plaintiff was injured while at work on a building belonging to the defendants, by the breaking and falling of a derrick which the defendants and their agents had placed there, and that the injury was caused by their negligence in not properly placing and fastening the derrick, as well as by their want of care in its selection, and in the selection of the proper agents and servants to look after and work it. There is a general denial in the answer. The evidence upon which the plaintiff relied to maintain his cause of action is all reported. It was ruled at the trial that the action could not be maintained, and a verdict was rendered for the defendants. The accident happened in the attempt to raise a stick of timber by the derrick to the top of the building. Several fellow workmen under the direction of Bancroft, the foreman, were engaged in the operation. It may be assumed for the purpose of this discussion, and as most favorable to the plaintiff, that the plaintiff and the others were in the direct employment of the defendants. They were at the time of the accident in the very same employment. And the plaintiff does not seek to recover for the negligence of his fellow servants, but insists upon the culpable negligence of the defendants themselves, first, in the employment of unskilful and incompetent servants, and next, in the improper use of an insufficient derrick as an appliance in the prosecution of the work. Upon a careful review of the evidence, we fail to find anything which would warrant a verdict for the plaintiff on either ground. There is nothing to show that the derrick was not properly made, or that the material used on it was not of sufficient strength for the work to be done. It appears that the timber, while being raised to its place, met with some obstruction in its way, and thereupon the order was given by Bancroft to “give another hoist and take it up; ” then the spar broke and the plaintiff was struck. The breaking was apparently due to the careless attempt to overcome by force an unforeseen obstruction in the work. It is not shown to have been caused by the imperfection of machinery fur [548] nished by the master for the servants’ use. The burden is on the plaintiff to show negligence, and this is not one of the cases where proof of the accident is prima facie evidence of negligence. The accident might have happened without the negligence alleged, and the means of knowledge as to the cause of the injury was clearly within the plaintiff’s reach. Le Barron v. East Boston Ferry Co. 11 Allen, 312, 316. Nor can we find evidence in the case that the defendants did not exercise due care in the selection of suitable agents and servants in the conduct of the business in which the plaintiff was employed. And upon the whole case there is nothing to take it out of the rule which exempts the master from responsibility to one servant for the negligence of another in the same employment. Exceptions overruled.