Jacobson v. Favor

Loring, J. We do not find it necessary to consider whether one of the defences set up by the defendant is made out as matter of law, namely, that a stronger ladder or ladders were furnished by him and were accessible for use by the plaintiff, for we are of opinion that if the ladder in question had been the only ladder furnished there is no evidence that the defendant was negligent. It is not pretended that the ladder made an insecure staging when used as it was used while O’Brien was present, that is to say, without its being extended at all. We say while O’Brien was present for we assume that he might have been found to be a superintendent so far as liability on that ground under the statute goes¿ and to be the person to whom the defendant left the matter of stagings so far as liability at common law and under the statute as to safe appliances and safe ways, works and machinery are concerned. What caused the accident here complained of was drawing the ladder out to a length of twenty-six feet at least, and putting on it three painters, whose aggregate weight was assumed to have been four hundred and ninety pounds, in order to paint the side of the house in one “ drop ” in place of keeping the ladder doubled up, as it was when O’Brien was present, and painting the side of the house in two “ drops.” The plaintiff, to use his own words, was a painter of twenty years’ experience, who had painted on stages all that time, had constantly used stages of all kinds on the outside of buildings, and had used extension ladders “lots of times.” The ladder was of spruce, with side pieces approximately two by three inches. The case therefore comes to this: Was it negligence on the defendant’s part to leave the plaintiff and his fellow workmen to paint the house with this ladder as a staging, without telling them not to extend the ladder if all three of them, with an [89] average weight of over one hundred and sixty pounds each were to use it as a staging ? That it would be dangerous to do so is in our opinion a fact within the knowledge of a painter of twenty years’ experience, who was conversant with the use of extension ladders as stagings. The case belongs to the same class as Arnold v. Eastman Freight Car Heater Co. 176 Mass. 135. See also Adasken v. Gilbert, 165 Mass. 443; McKay v. Hand, 168 Mass. 270. The plaintiff has asked us to hold that he had a right to go to the jury because in the course of his testimony he said “We had used this ladder painting on other jobs in this same way.” His argument is that from this isolated statement the jury could have inferred that the same three men had used the ladder extended and that this was known by the defendant. We are of opinion that taken as an isolated piece of testimony the jury would not be warranted in drawing those inferences. Moreover, as the evidence went in, this statement is shown by the testimony preceding and following it to refer to the use of the ladder as a staging, not to its use as a staging when drawn out, with three men upon it weighing on an average one hundred and sixty pounds apiece. If the plaintiff intended to go to the jury on this theory he should have developed it more in evidence than he did by eliciting this statement in the connection in which it was given. Exceptions sustained.