Donahue v. C. H. Buck & Co.

Bealey, J. The plaintiff, while at work for the defendant as a painter, was injured by the fall of a staging caused by the breaking of a rope strap on the block of one of the falls by which it had been suspended. In the performance of their work, the men constructed the staging from separate, hut in themselves complete and permanent appliances, used by the defendant in the prosecution of its business. If the staging was temporary in the sense that, after having been used on one job, the parts were separated, yet the separation was only for convenience, as when next required they would be again combined. It was incumbent upon the defendant under these conditions, whether at common law or under B,. L. c. 106, § 71, to provide reasonably safe, complete appliances, which the plaintiff in common with his fellow workmen could use in the performance of their work. A failure to make such provision or to warn the plaintiff of defects which were not obvious and exposed him to risk of injury furnished evidence of the defendant’s negligence. Feeney v. York Manuf. Co. 189 Mass. 336. Ford v. Eastern Bridge & Structural Co. 193 Mass. 89, 94. After having been placed in position, upon being subjected to the ordinary strain, the rope strap broke, and an examination showed that it had become worn, rotten, and unfitted for use. The plaintiff’s expert was of opinion that, if it had been sound, it would have safely sustained a much heavier load. Upon this evidence the jury could say not only that it was unfit for use, but also that the defendant in the exercise of reasonable diligence should have been aware of its defective condition. Graham v. Badger, 164 Mass. 42, 48. McMahon v. McHale, 174 Mass. 320. Ellis v. Thayer, 183 Mass. 309. The construction of the staging having been left to the workmen, the defendant would have been freed from liability if it had provided a supply of suitable blocks from which three falls [553] of the length which the plaintiff and his fellow workman were directed to get could have been selected. Adasken v. Gilbert, 165 Mass. 443, 445. Miller v. New York, New Haven, & Hartford Railroad, 175 Mass. 363. But from the evidence it appears that, upon examination, there were only three falls of this kind available or at their disposal, including the one with the defective block, and, having neglected to provide a suitable supply from which a further selection could have been made, the defendant fails to sustain this defence. There also is a count for negligence of the superintendent. All the arrangements for painting the building were made by the defendant’s superintendent, who selected the stock, designated the necessary supplies to be used and despatched the men. If the jury were satisfied that he either knew, or in the exercise of reasonable diligence ought to have known, of the defective fall, and directed its use, then the accident which followed could have been found attributable to his negligence in-superintendence. Collins v. Greenfield, 172 Mass. 78. Feeney v. York Manuf. Co., ubi supra. It cannot be said as a matter of law upon the plaintiff’s evidence either that he was careless, or that he 'assumed the risk, but this question also should have been submitted to the jury. In removing the falls from the peg where they hung, the plaintiff testified that he did not notice anything which indicated that they were unsound, and the dry rot which caused the weakness had not changed their outside appearance. There was no obligation resting upon him to inspect the block, and he had the right to rely on the presumption that the defendant had provided reasonably safe instrumentalities. Feeney v. York Manuf. Co., ubi supra. Garant v. Cashman, 183 Mass. 13, 18,19. .Exceptions sustained.