Granara v. Jacobs

Sheldon, J. The plaintiff was not entitled to recover upon his first count. That was at common law, and charged the defendants with negligence in the construction of the staging, the fall of which caused the plaintiff’s injuries. But there was no evidence that the staging was constructed by the defendants or furnished by them for the plaintiff to use, or that the planks used in its construction were supplied by them. The plaintiff offered no such evidence, and that given by the defendant who testified tended merely to show that the staging was put up by other contractors with their own planks and for their own purposes. Nor could it have been found that the defendants had adopted the staging for the use of their servants or had directed the plaintiff or others of their servants to use it. Kennedy v. Spring, 160 Mass. 203. O’Connor v. Rich, 164 Mass. 560. Brady v. Norcross, 172 Mass. 331. Thompson v. Worcester, 184 Mass. 354. For any negligence of their superintendent in sending the plaintiff or others upon it, they would not be liable at common law. Moody v. Hamilton Manuf. Co. 159 Mass. 70. Flynn v. Salem, 134 Mass. 351. Grebenstein v. Stone & Webster Engineering Co. 205 Mass. 431, 437. The second count charged a defect in the ways, works or machinery of the defendants under R. L. c. 106, § 71, cl. 1; St. 1909, c. 514, § 127, cl. 1. But such a structure as this, put up by a third person with his own materials for his own purposes, was not a part of the defendants’ ways, works or machinery, even though occasionally used by their servants. Adasken v. Gilbert, 165 Mass. 443. McKay v. Hand, 168 Mass. 270. Nichols v. Boston & Maine Railroad, 206 Mass. 463. There was evidence that the defendants’ superintendent told [275] the plaintiff to go upon this staging, and it has been argued that the order could have been found to be negligence in the superintendent, for which the defendants would be liable under cl. 2 of the statute already cited. It would be hard to say that this conduct was negligent. No outward visible defect appeared on the planks; there was no crack or knot on any of them; they were simply discolored, not apparently weakened, from prior use. It was Solari’s hurried going upon the planks that caused the fall, and there is no evidence that the superintendent told bim to take that path. But this question need not be considered; for no such cause of action is stated in the declaration. The whole averment thereof fails, if there was no defect in the defendant’s ways, works or machinery, as we have seen that there was not. We must take it that the ruling of the judge was made with the declaration before him and in view of its averments. Wallace v. New York, New Haven, & Harford Railroad, 208 Mass. 16. The doctrine of Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70, 78, frequently has been applied to sustain a ruling made at a trial, but not, so far as we have found, for the purpose of reversing a ruling apparently made upon the issues raised by the pleadings. The ruling which was reversed in Kellogg v. Boston & Maine Railroad, 210 Mass. 324, was made upon “all the evidence” merely, without reference to the specific averment of the declaration. Judgment for the defendants.