Rosseau v. Deschenes

Sheldon, J. The jury might have found that the plaintiff, while himself in the exercise of due care, was injured in consequence of the fall of the staging on which he was at work, and that this fall was caused by the breaking of one of the brackets which supported the staging and which were furnished by the defendants for that purpose. The inner part of this bracket, it might have been found, had become rotten from long use and exposure to the weather, so that it had become defective and dangerous; and the defendants might have discovered this fact by proper inspection. That is, the jury might have found that the plaintiff’s injury was due to the defendants’ negligence in supplying a defective and improper bracket for the construction of the staging upon which he was put to work. Unless he had assumed the risk of this accident, or unless it was due to the negligence of his fellow servants, the case should have been submitted to the jury. I. It cannot be said as matter of law that the defective condition of this bracket was so obvious that the plaintiff must be charged with knowledge of it and held to have assumed the risk of any resulting accident. Hosmer testified that such a bracket would appear sound to any one looking at it. Doubtless other parts of his testimony and other evidence in the case tended to a different conclusion; but the utmost that can be said is that it was a question for the jury. And a servant assumes the risk only of obvious defects. Anderson v. Marrinan, 202 Mass. 193. 2. Mor can the defendants escape liability on the ground that they had provided a sufficient number of safe and proper brackets, and are not to be held for the negligence of a fellow servant of the plaintiff in selecting a defective one for use. There was evi [264] dence that no more brackets had been provided than were needed to support the stagings around the house; this defective bracket was one of the last to be taken; and it might have been found that the defendants expected and intended that they should all be taken and used as needed, without taking down from the house brackets that had been put in place for other stagings. Accordingly, it might have been found that the defendants had furnished this particular bracket with the others to be used just as it was used. In this respect the ease differs from Callahan v. Phillips Academy, 180 Mass. 183, and similar cases. Moreover, the jury might have found that the defendants had furnished this bracket as one of a large quantity, all available for use and to be used indifferently, but that by reason of the defendants’ negligence this bracket, though to the eye as good as the others, had not the needed strength. Ford v. Eastern Bridge & Structural Co. 193 Mass. 89, 91. Cushing v. Smith Iron Co. 194 Mass. 310, 312. We have assumed that the plaintiff’s rights are no greater than if the staging, though erected while he was not employed by the defendants, had been constructed by his fellow servants. O’Connor v. Rich, 164 Mass. 560. 3. We have taken it for granted thus far that both defendants stand upon the same footing; and we are of opinion that the jury might have so found, although the testimony was somewhat meagre. There was evidence that the plaintiff was originally employed by Charron, but that he received his pay at first from Charron’s hand in a check signed by Deschenes, and that for his final payment he was sent by Charron to Deschenes’ office and received it there. Masse testified that both Deschenes and Charron busied themselves about the building, and gave directions as to the work to be done and the materials to be used. Masse was paid sometimes by one, sometimes by the other; the checks which he received from Charron were signed by Deschenes. The fact that Charron alone had made a contract with the owner of the house for its construction, though entitled to consideration, was not conclusive. Nor would it be material that the brackets were the individual property of Charron, if the jury found that both defendants had assumed the responsibility of furnishing proper appliances. 4. The evidence of Charron’s declarations as to his connection [265] with Deschenes, though of course incompetent against Deschenes, should have been admitted against Charron himself. Smith v. Collins, 115 Mass. 888. .'Exceptions sustained.