Colton v. Richards

Colt, J. The plaintiff fell from an imperfect staging, while at work erecting a mill as a mason in the employ of the defendant. To maintain an action against his employer for an injury so caused, the plaintiff must establish some neglect of a duty on the part of the defendant, arising out of the relation between them, which was the direct cause of the injury. In this case, the only cause was the breaking of a small piece of imperfect [487] timber, called a putlog, on which the floor of the staging rested. In all other respects, so far as it appears, the scaffolding was built upon a suitable plan, and, with the exception stated, of suitable materials. The plaintiff contended that it was the duty of the defendant to furnish a staging for the plaintiff, as a completed structure, ready for use in his employment, or at least to employ suitable and adequate material for its construction. He also contended that the putlog was a prepared utensil, made and fitted to be used for a defined and well known purpose, which it was the defendant’s duty to provide. Upon these several points, the judge gave full instructions, which sufficiently covered the plaintiff’s requests. These instructions stated the rule, that where the master undertakes to furnish suitable structures, appliances or materials, for the use of his servants in the performance of their work, or for the erection of the structures required in its performance, he is bound to «use ordinary care only, whether he is to furnish a temporary staging as a completed structure, or the materials for the same, or only a single implement for use as a manufactured utensil. Under these instructions, with nothing more, the jury must have found either that the defendant did not assume the alleged duty in any of the forms suggested, or that the duty, whatever it was, was faithfully performed. After these instructions had been given, the court, at the defendant’s request, further ruled, in substance, that if the defendant employed competent men to take charge of the erection of this building and of the staging necessary, and furnished suitable material therefor, he would not be liable, if a fellow workman, not under the superintendence of the defendant or his agent, selected a defective putlog, by the breaking of which the plaintiff was injured; and added, that the defendant would not be liable, if he used ordinary care and prudence in the selection of competent workmen and materials, from which the staging was made. It is objected by the plaintiff that this last and additional sentence does not state the full measure of the defendant’s duty, when, as master, he tabes upon himself the business of furnishing a completed staging for the use of his workmen. In such [488] case, it may indeed be true that the exercise of due care in selecting men and materials will not always satisfy the obligation 7,ssumed. It may still be his duty, especially when he superin- ' ends the work himself, to see that the completed structure is in tself reasonably safe and fit for the uses to which it is devoted. But this, last statement appears to have been only intended co apply to a case where the duty of the master did not include the building of the staging, but ended with the supply of materials. The judge had just told the jury that, if the defendant was to furnish a completed staging, he was bound to use such care as a person of ordinary prudence would use in providing such a structure. This was sufficiently definite in the absence of any request for more specific instructions. The plaintiff relied on the defendant’s neglect of duty in several forms, as we have seen, and the instructions asked by the defendant, taken together, imply that they all refer only to that which related to the supply of suitable material for the work. They expressly refer in terms to the case where the plaintiff and his fellow workmen are employed, to take charge not only of the erection of the building, but of the necessary staging also, and where the defective timber is selected by a fellow workman, not working under the superintendence of the defendant or his agent. As apphed to such a case, all parts of the instructions given at the defendant’s request are correct .and consistent; and the plaintiff’s objection is not well taken. Kelley v. Norcross, 121 Mass. 508. Arkerson v. Dennison, 117 Mass. 407. Ford v. Fitchburg Railroad, 110 Mass. 240. See also Allen v. New Gas Co. 1 Ex. D. 251; Wilson v. Merry, L. R. 1 H. L. Sc. 826. A majority of the court are of opinion that the entry in this cese must be Exceptions overruled.