Marshall v. Norcross

77 N.E. 1151, 191 Mass. 568, 1906 Mass. LEXIS 1324

Opinion

Hammond, J.

The plaintiff, an employee of the defendant, was injured by the fall of an angle iron upon him while at work upon the fifth story of a ten story building in process of construction. The angle iron was being removed from a certain iron girder to which it had been attached, and the jury would have been justified in finding that the fall was due to the negligent conduct of the men who removed it and who were the fellow servants of the plaintiff.

It appeared that no flooring had been placed between the seventh and fifth floors as required by St. 1901, c. 166, and it was contended that this fact was evidence of the negligence of the defendant. The judge however rightly charged that if this failure to cover by floors was apparent to the plaintiff and he appreciated the risk, then he assumed the risk. The plaintiff, who was an experienced workman fifty-three years of age, had been at work upon the building three weeks, and upon the evidence there can be no doubt that he knew of the absence of the flooring and hence assumed the risk of danger arising from noncompliance with the statutes.

The men who were engaged in the work of removing the iron from the girder are not shown to have been incompetent men. Both Eastman who was the foreman of the carpenters and iron workers and who gave the order for the removal of the angle iron, and Merz who was the foreman of the masons and as such directed the plaintiff where to work, had the right to assume that due. care would be used by the men who were removing the girder, and we see no ground for attributing negligence to either. If there was any negligence it was that of the fellow workmen of the plaintiff.

Exceptions sustained.