Hoppin v. City of Worcester

W. Allen, J. If the plaintiff was the servant of the defendant in the erection of the building, he was a fellow servant with Gates and Green, so far as they were employed in the construction of the staging. Colton v. Richards, 123 Mass. 484. Killea v. Faxon, 125 Mass. 485. It is argued that Gates, in supplying the defective bracket, acted as the agent of the defendant in furnishing materials, and not as its servant to construct the staging, and was not, in that [224] respect, a fellow servant with the plaintiff. But Gates had no authority from the defendant to furnish materials for it, and it was not as its agent for that purpose that he used his own brackets to support the staging. If not strictly tools required to be furnished by him, they are implements prepared and kept by him for the purpose of supporting stagings, which he might use under his contract with the defendant. He had no other authority from the defendant for furnishing them. The defendant employed him to furnish the labor and tools in the erection of the building from materials to be furnished by the.defendant, and it provided for furnishing all materials needed. The negligence which the evidence tends to prove is that of servants in constructing an unsafe staging, and not that of the master in not furnishing proper materials. Exceptions overruled.