WILLIAM S. MCMAHON v. CHARLES S. RICE.

TORT for personal injuries, received while the plaintiff was at work for the defendant in remodelling the two lower stories of a brick building numbered 15 on Cornhill, in Boston, and extending through to Brattle Street. Writ dated November 15, 1907.

In the Superior Court the case was tried before Bond, J. The facts are stated in the opinion. At the close of the plaintiff's case, the defendant rested and the judge ordered a verdict for the defendant. The plaintiff alleged exceptions, which, after the death of Bond, J., were allowed by Richardson, J.

W. H. Brown, (J. H. Coakley with him,) for the plaintiff.

W. H. Hitchcock, for the defendant.

HAMMOND, J. While the plaintiff was at work for the defendant in remodelling the two lower stories of a brick building, he was directed by the defendant, who personally superintended the work, to move a temporary brace which was supporting the second floor, and to put in a stronger one. As soon as he got to the place in-

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dicated and as he was taking hold of the brace, he was struck on the head by a brick which had slipped from the control of a fellow workman who was engaged in tearing down a part of the wall upon the Brattle Street side of the building. The plaintiff began to work for the defendant on the morning of the day of the accident, which occurred at about one o'clock P. M. He testified that he knew the building was going to be remodelled; that he did not notice during the forenoon that any bricks had been taken from the wall, although when he came back from dinner he did notice an opening in it about twenty feet from the ground, and that some of the wall was down, but he "couldn't tell what they were doing"; that he saw no staging on the Brattle Street side and saw no men at work about the wall, and that he did not stop to think "where the bricks had gone from the wall."

One Rudd testified as follows as to the way in which the work of tearing down the wall was carried on: "The wall had been taken down, to some extent at least, before the day of the accident. The wall was taken down by men employed by Mr. Rice and they chopped and loosened the brick with chisels and were supposed to chuck them down on the outside. There was a staging on the outside of the wall. The workmen cut at the brick with hammer and chisel, loosened them up and chucked them down, they took them in their hands and threw them down on this enclosed sidewalk. On the morning of the accident there were a good many brick in this enclosure. On the morning of the accident I couldn't tell how much of the wall was taken down. Some of it was down. The men were not supposed to throw brick on the inside of the building. I didn't see any thrown there." He described the circumstances of the accident as follows: "I was on the first floor and McMahon [the plaintiff] went below where I couldn't see him. . . . Some one said 'Look out' and I looked up just in time to see the mason making a grab for those bricks. There was no part of the wall fell except this bunch of bricks which the workmen had just dislodged. . . . When I heard the words 'Look out' it was then I looked and saw the brick falling down. The workman was knocking the brick off not directly above the plaintiff but somewhat to one side. Three or four feet to one side, but when he

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grabbed the brick he shoved it and of course it went off somewhat sideways." This witness further testified that "taking down walls by taking out the bricks and throwing them down was about the only way you can take them down, the only way I ever saw it done."

There was no evidence that would justify a jury in coming to the conclusion that the way adopted was unusual or improper. But the plaintiff contends that the defendant was negligent in ordering him to work upon the brace without proper precautions to protect him. He invokes the familiar rule that the master owes to his servant the duty of proper protection and to inform him of danger.

The building does not seem to have been a large one. The two lower stories were to be remodelled, a work which of necessity required some changes. The plaintiff had been a carpenter for thirty years and must be assumed to have known what kind of work was going on and how it was being done. Indeed he testified that the first thing he did on the building was to help put up a fence around the sidewalk on Brattle Street, that he did not "know what it was for unless it was to keep people out and from getting hurt from anything falling from the building." Whether or not he was so blind or inattentive, as he testified, to the manner in which the work, especially the demolition of the wall, was going on, it is certain that everything was before his eyes, and that the defendant had the right to assume that an experienced carpenter like the plaintiff could and would properly take care of himself so far as respected the usual and obvious dangers of the employment, and that he needed no instruction. Independent of any question of the assumption of risk by the plaintiff (as to which see Marshall v. Norcross, 191 Mass. 568), it cannot be said that there was any negligence on the part of the defendant in failing to inform the plaintiff of the possibility that a brick might escape from the control of the men at work on the wall. If there was any negligence it was that of the fellow servant who dropped the brick. For such negligence the defendant is not answerable. See Flynn v. Campbell, 160 Mass. 128; Fay v. Wilmarth, 183 Mass. 71; Boisvert v. Ward, 199 Mass. 594.

Exceptions overruled.