Negligence, Employer's liability. Evidence that a contractor's general superintendent directed K., a mason in the contractor's employ, to "take S. [another mason] and two helpers" and set a capping stone on a corner of the building, and departed, that K. said "Come on, S.," and that then they, with the aid of the two helpers, constructed a staging to use in setting the stone, that K. and S. received the same pay and that K. had no authority to hire or discharge employees, will not warrant a finding that K. was one "intrusted with and exercising superintendence, and whose sole or principal duty was that of superintendence," within the meaning of R.L.c. 106, § 71, cl. 2.
The mere fact, that, by reason of his experience, one mason employed by a contractor in the erection of a building gave directions to another mason and two helpers working with him on a certain part of the work, does not constitute him one whose sole or principal duty was that of superintendence within the meaning of R.L.c. 106, § 71, cl. 2.
A contractor is not liable, under R.L.c. 106, §§ 71, 72, for injury to an employee or death resulting therefrom, caused by the falling of a staging constructed in the course of their duties by the employee's fellow workmen, although it appears that one of such workmen, by reason of his experience, gave directions in the performance of that particular piece of work, the contractor and his superintendent being absent, and that the staging as constructed was neither safe nor suitable, it not appearing that the contractor failed to furnish proper materials for the purpose or that the sole or principal duty of the fellow workman who gave such directions was that of superintendence.
HAMMOND, J.
Without reciting the evidence in detail, it is sufficient to say that after a careful reading of it we are of opinion that it does not warrant a finding that Kallock was a superintendent. It is manifest that he acted principally as a workman. Even if it be assumed that by reason of his experience he gave directions in the moving of the stone and in the building of the staging, still that is far from making his sole or principal duty that of superintendence.
There is some conflict of evidence as to whether Stevens, the plaintiff's intestate, assisted in making the staging. Kallock, called by the plaintiff, testified that "Stevens was around there; he did nothing in reference to the construction of the staging, only he passed planks from the sidewalk into the cellar," and (on cross-examination) "I should say when a man stood in the position Mr. Stevens was there was nothing to obstruct his vision of the basement; I don't know how long he stood there passing planks; it wouldn't take many minutes to build the whole thing, about fifteen or twenty; I couldn't say that Mr. Stevens was passing plank all the time; we were setting barrels part of the time; and when we were setting barrels nobody would pass plank; we placed barrels and then put planks on them." Stanton testified that when they started in to construct the staging, "Stevens was talking with me; I did not see him pass any plank."
We are of opinion however that upon the whole evidence this must be regarded as a case where the men employed in moving and setting the stone, by the fall of which the injuries to Stevens were caused, were expected to build the temporary staging required for that specific work; that Stevens was one of the gang; and that the negligence in the construction of the staging was that of his fellow workman in not making proper use of the materials furnished by the employer. For the consequences of such a neglect the defendant is not answerable provided he furnished proper materials. O'Connor v. Neal, 153 Mass. 281. Thompson v. Worcester, 184 Mass. 354, and cases cited. There was no evidence of a failure on the part of the defendant to furnish proper materials.
Exceptions overruled.