Colford v. New England Structural Co.

Sheldon, J. We think it clear that upon the common law counts the action cannot be maintained. The plaintiff fully appreciated that the work in which he was engaged was highly dangerous; he with his fellow workmen put in place the plank which constituted the staging on which he was sitting and the blocks or timbers upon which the plank rested; he knew that if the plank was not high enough the trains would hit it, and that for his own safety he must see to it that the plank was high enough to clear the trains. And he cannot upon these counts hold the defendant liable for any negligence of his fellow servants, even though they were superintendents or in some position higher than his own. Ahern v. Hildreth, 183 Mass. 296. Healey v. George F. Blake Manuf. Co. 180 Mass. 270. O'Brien v. Rideout, 161 Mass. 170. He knew that trains were frequently passing under this staging, and he relied upon his fellow servants or a flagman of the railroad company to give him whatever warning he was to receive of the approach of a train. The plaintiff has also in counts under the statute alleged the negligence of a superintendent. R. L. c. 106, § 71. St. 1909, c. 514, § 127. But he cannot recover upon the failure of the superintendent to warn him of the approach of this train, for he knew that neither the superintendent nor any one else in behalf of the defendant had undertaken to do so. The testimony was that such warnings were given by the railroad company’s flag [285] man, and occasionally by any one, superintendent or workman, who happened to see a train. And there was nothing to show that the flagman was acting for the defendant or in the discharge of any duty entrusted to him by the defendant. This case is not like Boucher v. New York, New Haven, & Hartford Railroad, 196 Mass. 355, or Brow v. Boston & Albany Railroad, 157 Mass. 399, relied on by the plaintiff. The plaintiff contends that the superintendent was negligent in having the staging laid too low. But all the evidence is that the superintendent repeatedly told the plaintiff who constructed the staging to be sure to have it high enough to be out of the way of engines and trains. And the plaintiff testified, and there is nothing to the contrary, that the staging was just high enough to enable the men to do the riveting; that if it had been any higher they could not drive the rivets. There is no evidence that the superintendent any more than the men suspected or in the exercise of due care ought to have suspected that the staging was too low for safety; and there is affirmative evidence from the plaintiff that it could not practicably have been put higher. And if this is so, the plaintiff’s injury, if not due solely to one of the obvious risks of his employment, was at least not due to any negligence on the part of the superintendent. It is not necessary to consider whether the plaintiff was himself in the exercise of due care, or whether he had assumed the risk of the accident which happened. According to the terms of the report, judgment must be entered on the verdict. So ordered.