Barrett v. Bldg. Patent Scaffolding Co.

• Decision Date: 25 February 1942
• Parties: BARRETT v. BUILDING PATENT SCAFFOLDING CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 41

40 N.E.2d 6

BARRETT

v.BUILDING PATENT SCAFFOLDING CO., Inc.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 25, 1942.

Exceptions from Superior Court, Essex County; J. A. Sheehan, Judge.

Personal injury action by Linwood L. Barrett against Building Patent Scaffolding Company, Incorporated. Verdict for plaintiff in the sum of $35,000. On defendant's exceptions.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

R. J. Coffin and F. B. Willis, both of Boston, for plaintiff.

B. Sanderson, A. R. Kingston and G. Bolton, all of Boston, for defendant.

COX, Justice.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff, as the result of a fall from a scaffolding on Monday, August 9, 1937, when he was in the employ of a painting concern for whom the scaffolding had been erected by the defendant under the terms of a written contract. There was a verdict for the plaintiff and the defendant's exceptions are to the denial of its motion for a directed verdict and the refusal of the trial judge to give some of its requests for rulings.

By the terms of the contract, the defendant agreed to ‘furnish, erect and remove sufficient scaffolding’ to reach the walls and ceiling of the church which the painting concern was to paint. The contract also included the ‘furnishing and placing’ of fifty sixteen-foot planks. The defendant concedes that the contract ‘include implicitly the word ‘suitable.” See Hall v. Bates, 216 Mass. 140, 142, 103 N.E. 285. The scaffolding consisted of upright posts that rested on the floor of the church, to which were nailed ledger boards, and the planks were ‘just laid on’ the top of the highest ledger boards to form the platform upon which the painters worked.

The jury could have found that the work of installing the scaffolding was completed on the Thursday before the Monday on which the plaintiff was injured, that the plaintiff and the other employees began to use it on Saturday, and that on that day none of the planks were warped as much as one and one half inches. The age of the planks was from one to five or ten years. Planks of this character have a tendency as time goes on to warp or split, and a warp of over an inch or an inch and one quarter ‘would be considered dangerous.’ Such a plank should be either discarded or shimmed, that is, a block or something should be put under it to keep it from tipping, inasmuch as a warped plank has a tendency to tip, tilt or move when walked upon. Some of the planks that were used had to be shimmed. There was other evidence that defore the plaintiff's injury, some of the planks were a ‘bit tippy,’ and that some of them were warped so that ‘when you put your foot on * * * [them, they] would wobble back and forth.’ Although there was evidence that prior to the plaintiff's injury some of the planks had been moved, there was no evidence that any of these had been shimmed or that the plank from which the plaintiff fell had been moved. Although there was evidence that planks sometimes warp and straighten out later and that this may happen in a matter of three hours, the jury were not required to believe this.

The plaintiff, who had been a painter from some twenty years and was also a licensed ‘rigger,’ testified that on Saturday, when the painting commenced, he noticed that some of the planks were warped. He worked a full day on Saturday and had worked three and one half hours on the Monday following before he was injured. At the time of his injury, he was painting the ceiling and had been working ‘on that particular plank from which he fell for about 20 minutes.’ He could feel that the plank was warped an inch or an inch and one half, ‘probably the width of two fingers'; he stepped on the plank, it tilted, moved, and threw him off balance, and he fell to the floor. He noticed that the plank on which he was working was warped about an inch and one half ‘just before he fell.’

Where the owner of a scaffolding furnishes it for the use of an independent contractor, ordinarily he owes the same duty to an employee of the contractor that the owner would owe to his own employee using the scaffolding, and the employee in either case assumes all obvious risks in its use. Gray v. Boston, Revere Beach & Lynn Railroad, 261 Mass. 479, 482, 159 N.E. 441, and cases cited. See Mulchey v. Methodist Religious Society, 125 Mass. 487. We think it could have been found that some of the planks that were furnished by the defendant, including the one from which the plaintiff fell, were not suitable for their intended purpose, and, accordingly, that the defendant could have been found to be negligent. Furthermore, we are of opinion that it could have been found that, at the time the plaintiff was injured, he was working on a plank as it had been installed and left by the defendant when the scaffolding was completed. As already appears, there was no evidence that this plank had been moved. It seems that the ceiling of the church that was being painted, except over the balcony, could be reached by the scaffolding as erected. There was evidence that the workmen did not reach the ceiling over the belcony on Saturday, that, just before the plaintiff was injured, he had ...