Kimball v. George A. Fuller Co.

Braley, J. The plaintiff’s intestate, an electrician and employee of a “subscriber,” while at work on the sixth floor of a building which was being constructed by the defendant, the general contractor, was struck on the head by a piece of plank supposed to have fallen from the twelfth story where other men “not in the employ of the deceased’s employers,” were at work. The injury having caused his death without conscious suffering, this action is brought under G. L. c. 229, § 5, which in so far as material reads as follows: “a person who by his negligence, or by the negligence of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants, to be recovered in an action of tort, commenced within two years after the injury which caused the death by the executor or administrator of the deceased, to be distributed as provided in section one.” While the due care of the intestate is not questioned, the plaintiff cannot recover unless, on the agreed facts and inferences of fact to be drawn therefrom, the parties not having stipulated to the contrary, there is evidence of the defendant’s negligence. G. L. c. 231, § 126. Boston Lodge Order of Elks v. Boston, 217 Mass. 176. Fairbanks v. Kemp, 226 Mass. 75. See Nugent v. Consolidated Gas Co. 238 Mass. 221, 231, 232. [234] It is contended by the plaintiff that the unexplained falling of the piece of plank supplies the necessary proof. But the building was in process of construction, and the falling of a fragment of material from an upper floor was not an event of such an unusual character that of itself it furnished evidence of the defendant’s negligence. Pinney v. Hall, 156 Mass. 225. Hofnauer v. R. H. White Co. 186 Mass. 47. Williams v. Holbrook, 216 Mass. 239, 242. The entry must be, Judgment for the defendant.