Brogna v. Capodilupo
| Decision Date | 09 July 1932 |
| Citation | 181 N.E. 828,279 Mass. 586 |
| Parties | BROGNA v. CAPODILUPO. FIERIMONTE v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Raoul H. Beaudreau, Judge.
Two actions, one by Guy Brogna and the other by Gaetano Fierimonte against Michael Capodilupo. Verdict for each plaintiff. On defendant's exceptions.
Exceptions sustained, and judgment entered for defendant in each case.Edward F. Flynn, of Lynn, for plaintiffs.
G. B. Rowell and J. H. Lowell, both of Boston, for defendant.
The plaintiff in each case was a painter in the employ of an independent contractor who had a contract to paint three new houses for the defendant. The plaintiffs fell from a staging on one of the defendant's houses on which they were at work and received injuries. The declarations base the asserted right of the plaintiffs to recover on negligence of the defendant in failing to warn them of an alleged dangerous and unsafe condition of the gutter from which the staging was suspended. There was a verdict for each plaintiff. A consolidated bill of exceptions presents for our consideration the defendant's exceptions taken in each case to the exclusion of certain evidence, to the denial of certain of the defendant's requests for rulings, to certain portions of the charge and to the refusal of the trial judge to allow the defendant's written motions for the direction of verdicts for the defendant.
In the following summary of the evidence where the testimony was conflicting the version most favorable to the plaintiffs has been taken. The staging was about forty-five feet long and had been placed on the side of the defendant's house a few days before July 20, 1925, on the morning of which day the plaintiff Brogna and another painter were on the staging and the plaintiff Fierimonte had just stepped upon it when the boards constituting the floor of the staging separated and the two plaintiffs were thrown to the ground. The staging was supported by four sets of ropes or falls running to four hooks about ten feet apart which rested on pieces of wood placed in the gutter at the eaves of the house. It could be raised and lowered and put at such height as the painters using it desired by means of pulleys in each of the four sets of falls. Above the part of the staging on which Fierimonte stepped was one of the four hooks, and a section of the gutter ten feet long by which that particular hook was supported was pulled away from its attachment to the house when he stepped upon the staging. There was evidence from which the jury were warranted in finding that the failure of the gutter to support that particular hook was the immediate cause of the plaintiffs' fall. A few days before the accident the staging, under the direction and supervision of the plaintiffs' employer, who had been a painter for twenty-two years, had been placed where it was when the plaintiffs fell. He owned the staging and all the appliances used in connection with it. He testified that he took the hooks and the falls up on an extension ladder, placed the four blocks of wood in the gutter and set the hooks upon them; that before doing this he looked at the gutters and gave them the usual tests and could see nothing wrong with the gutters; that when he had the staging attached he looked it over and gave it the usual observation and the usual test; that he had his men ‘jam it’ to see if it was all right while he looked on carefully from the top, and there was nothing wrong with the staging or with the gutter. Both plaintiffs were present when the staging was first put up and the plaintiff Brogna was there when it was tested. The defendant was not present when the staging was put up and did not direct it to be done or say he wanted it to be done ‘one way or the other.’ With reference to the ten-foot piece of the gutter which the jury might find was pulled away from its attachment to the house, rather than split by the hook as the defendant's evidence tended to prove, the plaintiffs' employer, who saw it three or four days after the accident, testified that ‘he saw four 8d nails in it’ which he would say were two and one-half inches long. He did not testify that there were not indications of more nails having been in that section of the gutter or as to what was observable with reference to the nailing of that section when he examined and tested the gutter and found it all right at the time he placed the staging on the house. There was testimony introduced by the defendant that the gutter was nailed to the house with 8d nails two and one-half inches long and 20d nails about four inches long and that there were 20d nails every twenty inches. The plaintiffs' employer testified that when he went up to place the hooks on the gutter he saw no moulding under the gutter, and that a moulding gives a little support to the gutter. The house was built for the defendant by an independent contractor under an agreement providing that the defendant should furnish the material and the independent contractor the labor, and that the work should be done in a good, workmanlike manner. While it was being built the defendant came to the house once in a while to see how it was going, what kind of work they were putting into it. He did not tell the carpenters how he wanted the work done or make any suggestions to them as to this house. Whatever he observed in the construction of the house was all right and was done by the carpenters to his complete satisfaction. He did not see the carpenters put up the gutters or look them over at the work. The defendant testified that he purchased the gutters new, and that they were made of fir which is good substantial wood. The carpenter work on the outside of the house had been completed at the time of the accident. The plaintiff Brogna testified that when the staging was being tested he looked at the gutter from the ground and saw nothing obvious that would indicate a defect. The defendant offered testimony to the effect that the gutters when put up were in good condition. The plaintiff Fierimonte testified that he was a painter, that he had worked on other houses of the defendant, that he had at times assisted the independent contractor, who was his brother, in putting up stagings and that he looked at the gutter, ropes and hooks just before getting on the staging. The plaintiff Brogna testified that he...
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