Bonin v. Ballard

Sheldon, J. Apart from the difficulty in the way of maintaining an action against the two defendants jointly (Mulchey v. Methodist Religious Society, 125 Mass. 487, 489), the plaintiff could not recover upon the first count of his declaration because there was no evidence of negligence on the part of the defendant Harry Ballard. As to the other counts, it would perhaps be enough to say that each of them rests upon the averment that the plaintiff was a servant of one or both of the defendants; and, as he has contended in this court, that he did not become and was not such a servant, and may be presumed to have made the same contention in the Superior Court, the verdict was ordered rightly upon this contention ; for if there was no such relation, the plaintiff must' fail upon each of these counts. But prefer to pass upon the merits. The jury doubtless might have found upon the evidence that although the plaintiff was in the general employ of the People’s Coal Company, that company had so lent his services to the Ballard estate that the control over him had passed for the time to that estate, and that at the time of the accident he was a servant of the defendant Mary A. Ballard as the trustee of that estate, and had as against her the rights of a servant. Delory v. Blodgett, 185 Mass. 126, and cases there cited. There is nothing in Oulighan v. Butler, 189 Mass. 287,290, inconsistent with this. But there was no evidence of any defect in the ways, works or machinery of this quarry. The stones of which one fell upon the plaintiff were merely temporarily put in a pile, and could in no sense be considered a part of such ways, works or machinery. Feeney v. York Manuf. Co. 189 Mass. 336. They were like the pile of boards in Campbell v. Dearborn, 175 Mass. 183. This pile was not intended to be itself used by the workmen, like the staging in Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. Accordingly the action could not be maintained upon the second count of the declaration. [528] Nor, if we assume that Sullivan could have been found to be a superintendent within the meaning of R. L. c. 106, §71, cl. 2, was there any evidence of negligence on his part. It does not appear that he had any reason to suppose that he was sending the plaintiff into a dangerous place without proper warning. It is not shown that there was any such unknown danger as to require a warning. Sampson v. Holbrook, 192 Mass. 421. If the plaintiff’s own testimony is to be followed, the fall of the stone that injured him may have been due to the carelessness of his fellow servants in the course they adopted to break up the larger stones. If the defendants’ testimony is to be followed, it was due to the plaintiff’s own negligence. There could be no recovery upon the third count. As to the fourth count, it is enough to say that there was no evidence to show either that the ways and appliances of the quarry were in an unsafe condition, or that there was any such state of affairs as made it the duty of Harry Ballard to give any instruction, warning or information to the plaintiff. Davis v. Forbes, 171 Mass. 548. Kanz v. Page, 168 Mass. 217, 218. Duffy v. New York, New Haven, & Hartford Railroad, 192 Mass. 28. Stuart v. West End Street Railway, 163 Mass. 391. The doctrine of res ipso loquitur has no bearing upon this case; and the cases relied on by the plaintiff are not applicable. Exceptions overruled.