Negligence, Employer's liability. If a workman employed upon a building in process of construction, in attempting to pass from a staging on the inside of an unfinished brick wall of the building to a staging on the outside of the wall, steps on a "spreader," which is a piece of wood fastened temporarily across the middle of a window frame to prevent it from buckling as the wall is constructed around it, he takes the risk of an injury caused by the spreader giving way and precipitating him to the ground.
A building contractor is not liable at common law to one of his workmen, who was injured by the giving way of a spreader that was fastened negligently across a window frame, if the fastening was done by a fellow servant of the injured workman; nor can such contractor be held liable at common law on the ground that the injured workman had been taught to step on such spreaders by an employee of the contractor whom it was his duty to assist, such employee being also a fellow servant of the injured workman.
HAMMOND, J.
The manifest office of a "spreader" is to keep the sides of the window frame from buckling under the pressure of the brick wall in process of construction; and the defendant testified that he never knew one to be used for any other purpose.
The building was incomplete. It is natural for workmen in moving about under such circumstances to avail themselves more or less for the time being of almost any object within reach which promises the slightest aid. Even if, as the evidence for the plaintiff tended to show, a workman in passing between the outside and inside stages sometimes used a spreader as a stepping place, such a use is so far disconnected from its manifest office that the workman must be regarded as acting at his own risk. Gillette v. General Electric Co. 187 Mass. 1, and cases cited.
Moreover, the case was submitted to the jury only upon the common law counts. The spreader gave way because the fastening was weak. Both the workmen who did the fastening and O'Toole, by whom the plaintiff, as he testified, had been taught to step upon spreaders, were fellow workmen of the plaintiff. The negligence, if any there was, was that of these fellow servants, for which the defendant is not answerable. A verdict should have been ordered for the defendant in accordance with his request.
Exceptions sustained.