Dunlap v. Barney Manufacturing Co.

18 N.E. 599, 148 Mass. 51, 1888 Mass. LEXIS 16

• Court: Massachusetts Supreme Judicial Court
• Decided: November 28, 1888
• Status: Published

Opinion

Morton, C. J.

The plaintiff was injured while attempting to move some heavy steps from one part of the defendant’s premises to another. He and two other men, who were fellow servants with him in the employ of the defendant, undertook to lift the steps on to a low truck; they were too heavy to be handled by three men, and the plaintiff’s ground of action is that the defendant failed to furnish a proper number of men, or suitable tools and implements, to perform the work. But there is no evidence of any such negligence on the part of the defendant. There is no evidence put in by the plaintiff to show that there was not a sufficient number of men about the premises who could have been called to aid in the work, or that there were not proper tools and implements which might have been used if needed. The evidence for the defendant, which was uncontradicted, showed that there were nine or ten men who might have been called to assist, and all tools and implements necessary to move great weights. The case proved is, that, the defendant having ordered that the. steps should be moved, three men who were fellow servants undertook to do it. If there was any danger in the work, it was obvious to the plaintiff and his fellow servants. If there was any negligence, it was the negligence of the plaintiff or of his fellow servants in not calling more men to assist, or in not making use of the tools and implements furnished by the defendant for such cases.

The court properly directed ^ verdict for the defendant. We may add, that the St. of 1887, c. 270, is not applicable, as the accident happened before it went into effect.

Exceptions overruled.