Fay v. Wilmarth

Morton, J. This is an action of tort for personal injuries. There was a count at common law, and one under the employers’ liability act. The count at common law was for setting the plaintiff to work in an unsafe place without warning him of the danger. The count under the employers’ liability act was for the negligence of a person acting as superintendent. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendants. The case is here on exceptions by the plaintiff to this ruling. We think that the ruling was right. The substance of the plaintiff’s case is that the hammer fell in consequence of some movement of the carpenter to save himself from falling, which was caused by a motion of the ladder on which he stood, which would not have happened had the ladder been securely fastened at the top and bottom which it was not, and that the lack of fastening was due to negligence on the part of the defendants or their superintendent under whose direction the ladder was placed. It may be doubted whether the alleged negligence of the defendants and of their superintendent is not too remote, and whether the plaintiff’s injury was not due to a cause intervening between the alleged negligence of the defendants and the fall of the hammer, namely, the effort made by the carpenter to save himself from falling. But the ruling may well stand on other grounds. For aught that appears the hammer may have been so carelessly placed on the cross piece by the carpenter as to fall of itself, or by a slight jar. His act in temporarily placing it there cannot be imputed as negligence to the defendants [74] or their superintendent or as constituting a defect in the ways, works or machinery, or as creating a danger of which the plaintiff should have been warned. It was one of the momentary incidents of the work which neither the defendants nor their superintendent could be- expected to look out for, or be liable for. If it belonged to the defendants or their superintendent to see that the ladder was securely fastened, and there was negligence on their part in failing to do so, there is nothing to show that the plaintiff’s injury was due to such negligence. There was no evidence tending to show that the foot of the ladder or the boards or planks on which it rested, moved, and, if the upper part moved, as it is fair, perhaps, to assume from the exceptions that it did, there is nothing to show what caused it to move. The mere fact that it was not fastened is not enough, of itself, to render the defendants liable. There must be some evidence tending to show that it moved because there was no fastening. Further it is expressly stated in the bill of exceptions that it was the business of the man who used the ladder to fasten and secure it. The negligence, if there was any, was therefore the negligence of a fellow servant. Exceptions overruled.