Farrell v. B. F. Sturtevant Co.

80 N.E. 469, 194 Mass. 431, 1907 Mass. LEXIS 997

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1907
• Status: Published

Opinion

Morton, J.

The defendant was engaged in erecting five buildings in Readville. It had as foreman a man named McNeil. McNeil directed one Scott, who was a carpenter, to move a gin pole or derrick from a building which they had finished to the third floor of another building. The gin pole was a stick of timber twenty-two to twenty-five feet long, four by six inches, and was to be used as a derrick for the purpose of hoisting up the floor beams. It had two guys on the back and one or two on the front to hold it in place, and a fall to be used for hoisting, and weighed all together between three and four hundred pounds. There were six or seven men, of whom the plaintiff’s intestate was one, in the gang for moving the pole. 'After giving the direction McNeil went away and Scott proceeded to move the pole, and had got it on to the third floor and substantially into position, and, with the assistance of the plaintiff’s intestate, was in the act of moving the foot a little, when the foot slipped and pushed the plaintiff’s intestate over and he fell one or two stories, receiving injuries which resulted in his death. At the close of the plaintiff’s evidence the judge directed a verdict for the defendant and the case is here on the plaintiff’s exceptions.

We think that the jury would have been warranted in finding that Scott had charge of moving and putting up the pole, not as a workman, but as a superintendent or foreman in the absence of McNeil, with the authority or consent of the defendant. Cashman v. Chase, 156 Mass. 342. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. McPhee v. Scully, 163 Mass. 216. Crowley v. Cutting, 165 Mass. 436. Knight v. Overman Wheel Co. 174 Mass. 455. Hilton v. Merrill, 106 Mass. 528. Smith v. Norris, 120 Mass. 58. But we do not see how it can be said that the accident was due to any negligence on his part. It is immaterial whether he was accustomed to move gin poles or not. The pole had been moved to the third floor without accident and was substantially, as we understand the evidence, in the position in which it was required to be. What happened was this : The foot of the pole rested on some planks which had been placed across the floor beams a short time before, “ probably,” as the testimony tended to show, “ by Farrell himself and the others,” and the top rested against a roof timber. The fall had been taken off and fastened to a roof timber to hoist the pole up with and- had to be fastened on to the top of the pole again. It was necessary to slide out the foot of the pole a little to do this. Scott and Farrell were trying to do that, and Scott directed Farrell “ to steady it, steady the bottom of it so it wouldn’t slide,” and when Farrell started to “ move the bottom out ” as thus directed the pole “ simply slipped and pushed him out, pushed him over.” The distance that the pole slipped was short, “ only ... a couple of feet at the bottom.” On this statement we do not see how, as already observed, Scott could be said to be at fault for what occurred, or how expert testimony would have helped to throw any light on the question whether he was negligent in undertaking to move the foot of the gin pole as he did. Moreover the intestate was forty-two years old and had always worked at his trade as a carpenter and was, as the testimony tended to show, “an active, intelligent man and a careful workman.” The situation was as obvious and the danger, if any, of attempting to slide the foot of the gin pole along was as apparent to him, to say the least, as to Scott, and it may well be doubted whether he did not impliedly consent to the assumption of the risk.

No harm was done by the exclusion of the questions to the witness McNeil though they might properly have been admitted.

* It sufficiently appeared at the close of the plaintiff’s evidence what Scott’s duties were in connection with the moving of the gin pole, and from whom the men in the gang took and were to take their orders, and, as already observed, the evidence warranted a finding that Scott was acting as foreman with the defendant’s consent in the absence of McNeil.

A. Lincoln, for the plaintiff. W. I. Badger, ( W. H. Hitchcock with him,) for the defendant.

There was nothing to show that Scott did not have all the ropes necessary to move the gin pole, and therefore the general questions relating to the supply of ropes for hoisting purposes were properly excluded.

While the failure of the defendant to comply with the provisions of R. L. c. 104, § 44,* constituted a violation of law and contributed to render the conditions under which the plaintiff’s intestate worked upon the building more hazardous, it was not a cause contributing to the accident but a condition of it and therefore did not render the defendant liable. Newcomb v. Boston Protective Department, 146 Mass. 596.

The result is that the exceptions must be overruled.

So ordered.

McNeil was called by the plaintiff, and the questions excluded were “ What were Mr. Scott’s duties in connection with this work which you told him to do ? ” and From whom would the men in this gang, who were working on this work of getting up the pole, in the usual course of such work take their orders ? ”

It appeared that the building was a steel frame building, three stories high, that the roof had been at least partially constructed, the roof timbers being laid, and that the carpenters on the day of the accident were engaged in putting in the floor timbers, none of the floors having been laid.

The plaintiff contended that the fact that the defendant acted in violation of law in failing to place and maintain a close plank flooring on the first and second floors before adding the third story to the building as required by R. L. c. 104, § 44, was evidence of negligence which contributed to the injuries sustained by Farrell and should have been submitted to the jury, that the object of the statute is to prevent a workman from falling through floors, and, that it was for the jury to say how much the injuries and subsequent death of Farrell were caused or affected by his falling through the second floor.