Davis v. John L. Whiting & Son Co.

• Decision Date: 24 February 1909
• Citation: 201 Mass. 91,87 N.E. 199
• Parties: DAVIS SAME v. JOHN L. WHITING & SON CO. SAME v. GRANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 91

87 N.E. 199

DAVIS SAME v. JOHN L. WHITING & SON CO. SAME v. GRANT.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1909

COUNSEL

C. W Bartlett E. R. Anderson, and F. E. Jennings, for plaintiff.

Matthews Thompson & Spring, for defendant John L. Whiting & Son Co.

Robt. B. Stone, for defendant Grant.

OPINION

KNOWLTON C.J.

These are two actions tried together in the superior court, brought to recover for an injury received by the plaintiff from the fall of a shutter from a building occupied and kept in repair by the defendant in the first action, the shutters of which were being painted by the defendant in the second action. The plaintiff contended that he was walking through Belcher Lane, a public highway in the city of Boston, in the exercise of due care, and that the defendant Grant and his servants negligently suffered the shutter to fall upon him from the fifth story of the building, while they were drawing up a ladder used as a staging, with ropes and pulleys along the face of the wall, in such a way that the ladder lifted up the shutter from its hinges as it was open against the wall, and left it without support. He also contended that the defendant in the first case made a contract with the defendant in the second case for the painting of the shutters, the performance of which contract necessarily involved such danger to travelers upon the street below that it was legally bound to protect them from the danger. The jury found against both defendants, and the cases are here upon exceptions. We will consider first the case against the occupant of the building.

The jury were instructed to answer this question: 'Was the work of painting the shutters on the building necessarily attended with danger to persons passing along Belcher Lane?' They answered it in the affirmative. If the question meant, 'Was there such risk of accident from the probable negligence or want of skill of some of the workmen as necessarily to involve an appreciable danger of injury to persons passing below?' there was evidence to warrant the finding. But the finding of this fact would not create a liability on the part of the defendant. The evidence was undisputed that Grant made a contract to paint the shutters for an agreed price, and that the other defendant had no right of control over him in doing the work. There was no evidence of any attempt to exercise supervision or control of him in the performance of the contract, otherwise than to see that what he did and furnished was in accordance with the requirements of the contract. There was, therefore, no liability on the part of the defendant in the first action for the negligence of Grant or of his servants. The attempt to hold the corporation liable is on the ground recognized in Woodman v. Metropolitan Railroad, 149 Mass. 335, 21 N.E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427, Curtis v. Kiley, 153 Mass. 409, 26 N.E. 421, and Wetherbee v. Partridge, 175 Mass. 185, 55 N.E. 894, 78 Am. St. Rep. 486. The cases in which this liability exists are generally where the defendant contracts for the creation of a condition of his property, or for a use of his property, which condition or use necessarily causes danger to others, unless precautions are taken to protect them from the consequences of such condition or use. One who brings into existence such a danger even if he does it through an independent contractor, ought to guard against the probable effect of it. But the principle does not apply to cases where the danger does not come from the condition of the property or the use of it with proper skill and care, but comes only from an unskillful or negligent act of the contractor or his servants, even if a lack of skill or care on the part of some of the persons engaged in the business reasonably may be expected. The distinction is well stated in Boomer v. Wilbur, 176 Mass. 482, 57 N.E. 1004, 53 L. R. A. 172, in which such instructions as were given in the present case were held to be erroneous, as applied to the facts then before the court. Mr. Justice Hammond said in the opinion: 'The accident was caused by the act of the contractor in doing what it was not necessary for him to do and what he did not intend to do. If it had been necessary for him to topple the chimney over into the street, or remove the bricks by letting them fall into it, or the contract had contemplated such action, the instructions would not have been objectionable. But as this was not necessary or intended, the work could not be classed with work which, if properly done, was ordinarily attended with danger to the public.' This may be said with equal truth in the present case. In the performance of the contract it was not necessary for the contractor to drop a shutter upon the walk below. It was not expected or intended that he should do it. His contract was to paint all the shutters on the building. The evidence tended to show that such shutters were always painted on the building, and that they would be expected to be painted there. The jury might well find that this contract was intended to be performed without a removal of the shutters. But the painting the shutters upon the building did not necessarily make the building a nuisance, or put it into a dangerous condition, such as to make it an object of peril to travelers on the street.

The only danger referred to in the testimony was connected with the movement of the staging on the side of the building, and the only particular in which the testimony tended to show that this was dangerous was in lifting the ladder when it was suffered to be so near the wall as to come under the shutters that were open on the side of the building. But the undisputed testimony was that the ropes by which the ladder was raised descended from pulleys near the eaves, and that these ropes came down behind the ladder, between it and the wall, and that it was easy, by pulling the ropes away from the building, to hold the ladder away from the shutters, so that it would not lift the shutter from its hinges. There was evidence not only that this building had been painted before with the shutters on it, but that buildings with such fire shutters were always so painted, and there was nothing to show that a shutter ever fell from such a cause before or afterwards. There was no evidence that the shutter was out of repair or improperly constructed. The only evidence as to the cause of the...