Eldred v. Mackie

Morton, J. These two cases were tried together. The declaration in each case is the same and alleges in substance that the plaintiff was employed by the defendants, and, being himself in the exercise of due care, was negligently put to work by them in an unsafe and dangerous place, to wit, under a flooring which was heavily loaded with lumber and boards and improperly supported and which fell and injured him. The declarations evidently are drawn on the footing that the relations between the parties were those of master and servant. The undisputed evidence showed that the defendants had contracted with the city of Brockton to build a brick schoolhouse, and had sublet a portion of the work to the plaintiffs and two other persons under a written contract between them and the defendants. It was provided in this contract that the work should be done by the plaintiffs and their associates “ to the satisfaction of the Superintendent of Public Property of the City of Brock-ton.” So far as appears the contract gave the defendants no control over the plaintiffs and their associates but they were at liberty to do the work in their own way and when they chose 5 so long as they performed their contract. It appeared in evidence that they selected one of their own number, one Simmons, as a working manager, and Simmons testified that “ he received orders and directions from no one.” The accident occurred while the plaintiffs were on the second floor of the building looking for staging for a chimney on which they were going to work, and was caused by the falling of the third floor. There was no evidence that they were going to work on the chimney, in consequence of any specific orders or directions by the defendants. On the contrary one of the plaintiffs testified that no one told them to go to work that morning on the chimney. He testified, in substance, that they knew where to go to work themselves and that there was no other work for them to do except on the chimney. There was evidence tending to show that the defendants had directed the plaintiffs to hurry up the chimney and for two or three days had been urging them to hurry it along. But this falls far short of showing that the defendants had assumed control of the work and of the plaintiffs and their associates. There was also evidence of other directions by the defendants, and one of the defendants testified that “ he had charge of the construction of the building generally speaking,” which is what we understand one of the plaintiffs to have meant when he testified that “ they [the defendants] took and advised and directed us, a general direction of the whole business.” Notwithstanding the directions that were given it seems to' us plain that the relation between the parties was not that of master and servant but that of contractors and contractees and that the directions that were given were incident to that relation. It also seems to us clear that there was no evidence to warrant a finding that the plaintiffs were put to work by the defendants in an unsafe and dangerous place. We do not mean to say that if the relation between the plaintiffs and the defendants was that of contractors and contractees the defendants owed the plaintiffs no duty not to expose them to injury by reason of the want of due care on their, the defendants’, part while they, the plaintiffs, were doing the work which they had contracted to do. Curley v. Harris, 11 Allen, 112. But we must deal with the case as it is presented, and as already observed the declarations are drawn on the footing of a relation of master and servant and of the plaintiffs having been 6 put to work as servants in an unsafe and dangerous place. For reasons given we think that this view cannot be sustained. In regard to Indermaur v. Dames, L. R. 1 C. P. 274, which is relied on by the plaintiffs, it is to be observed that though the declaration alleges an employment, the plaintiff was required as a condition of recovery to amend his declaration so as to conform to the facts proved. Exceptions overruled.