Benjamin v. O'Connell & Lee Mfg. Co.

• Decision Date: 09 November 1956
• Citation: 138 N.E.2d 126,334 Mass. 646
• Parties: Edward BENJAMIN v. The O'CONNELL & LEE MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 126

138 N.E.2d 126

334 Mass. 646

Edward BENJAMIN v. The O'CONNELL & LEE MFG. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 5, 1956.

Decided Nov. 9, 1956.

David W. Kelly, Boston, for plaintiff.

David H. Fulton, Boston, Robert Fulton, Boston, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ.

CUTTER, Justice.

The plaintiff seeks to recover for injuries alleged to have been caused by the negligence of the defendant, a corporation operating a wood working mill. The circumstances admittedly would warrant a finding that the plaintiff was upon the defendant's premises as a business invitee. Exceptions were claimed to the denial of the defendant's motion for a directed verdict, as well as to the admission of certain evidence mentioned below. There was a verdict for the plaintiff. The case is here on the defendant's bill of exceptions.

The plaintiff, an employee of Weathermaster Window Sales Co., Inc. (hereinafter called Weathermaster), went to the defendant's premises to pick up certain lumber and materials ordered by Weathermaster. The particular order sought was not ready. Another larger order was ready, but Weathermaster was not yet prepared to remove it, although it was in the defendant's way. The defendant arranged with Weathermaster that the larger order would be stored temporarily by the plaintiff in vacant space in a shed on the defendant's premises.

The plaintiff and one Corbin were directed to store the lumber in the upper story of a shed pointed out to them by an employee of the defendant. The shed, built twenty-five years before the accident, was a two story building, wholly used for lumber storage. Outside the second story there was a platform about fourteen to twenty feet above the ground and about four feet wide. Along the outside of the platform was a wooden railing, about three feet high, consisting of upright 4' X 4' wooden posts about ten feet apart. Wooden rails of the same size, removable a section at a time and not fastened to the posts, ran between the posts with each section of the railing ending at the middle of the top of a post and resting upon it. Two metal plates on the side of, and extending above, the top of each post (with one exception later noted) held the railing in place. These plates were fastened to the posts by screws. In loading lumber in the compartment on the second floor, designated to the plaintiff for the storage of Weathermaster's order, it was necessary to pass the lumber up by hand to the platform.

The material to be stored was described as 'light stuff' and weighed three quarters of a pound per linear foot. It was inflexible wooden molding in strips (about one and a half inches thick and two and a half inches wide) running sixteen to twenty feet long, and was awkward to manage. The plaintiff and Corbin moved the molding on a cart to a point under the platform and Corbin, on the ground, started to pass a piece of molding twenty feet long to the plaintiff on the balcony. The latter seized it in both hands and started to draw it 'like the fellow with a bow across his fiddle' over the rail, intending to place it in the shed in a pigeon hole about the height of his own shoulder. When about five feet of the molding had been drawn across the rail, leaving fifteen feet in the air, the rail fell out, the plaintiff lost his balance and fell to the ground and was injured. As he fell, he saw a wooden 'cleat' about four inches wide by twelve inches long and one inch thick falling ahead of him. After he hit the ground, the plaintiff observed that the cleat, which he defined as a 'piece of board temporarily nailed on to hold a structure or staging together,' had approximately six nails each rusted out to a point. The rusted nail points extended beyond the face of the cleat only slightly and just came through the wood. As the plaintiff looked up at the point where he had been, he saw a weather mark about nine or ten inches long on the upper end of a post twenty-two or twenty-three feet above him, at a point where the railing was not in place. The weather mark on the post looked 'suitable for the piece of wood that came off of it.' The plaintiff testified to considerable experience in handling lumber in buildings of the type of the shed, and described the rail as 'originally built to sustain a good deal more' than the approximately fifteen pounds weight of the strip of molding. The shed had been used for the storage of lumber fairly frequently prior to 1932, but not very much after that. Work had been done to make repairs to railings when they had been injured by dropping lumber on them. The defendant's president, who was also, on the day of the accident, the working foreman of the defendant, had no occasion to inspect the rail and stated that the plates and screws in them were never replaced so far as he knew. The defendant's employee charged with repair work admitted that he had not inspected the railing prior to the accident. There was evidence that where nails are exposed to weather over a period of time, the rust starts to scale on the outside, diminishing the size of the nails to a point, so that they break, and that the use of unbolted cleats was not a safe construction on a structure of the type here involved. See Chambers v. Durling, 306 Mass. 237, 328, 28 N.E.2d 459.

The duty owed by the defendant to a business invitee was to use due care to keep its premises in a reasonably safe condition for use according to the invitation or to warn of dangers not obvious to the ordinary person and of which he would not be expected to know, but which were known or should have been known to the defendant. Fulton v. Edison Electric Illuminating Co. of Boston, 303 Mass. 258, 262-263, 21 N.E.2d 609; Adams v. George Lawley & Son Corp., 314 Mass. 87, 89-90, 49 N.E.2d 244; LeBlanc v. Atlantic Building & Supply Co., Inc., 32 Mass. 702, 705, 84 N.E.2d 10; Smith v. August A. Busch Co. of Massachusetts, Inc., 329 Mass. 615, 620, 109 N.E.2d 843. The plaintiff was obliged to use his faculties for his own protection and to guard himself from obvious hazards. Barrett v. Builders' Patent Scaffolding Co., Inc., 311 Mass. 41, 44-46, 40 N.E.2d 6; Darcy v. Lord & Burnham Co., 320 Mass. 371,...