Favereau v. Gabele

• Decision Date: 10 January 1928
• Citation: 159 N.E. 738,262 Mass. 118
• Parties: FAVEREAU v. GABELE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 118

159 N.E. 738

FAVEREAU

v.GABELE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 10, 1928.

Exceptions from Superior Court, Suffolk County; Winfred H. Whiting, Judge.

Action by George J. Favereau against Frederick Gabele and others. Verdict for plaintiff, and defendants bring exceptions. Exceptions sustained, and judgment entered for defendants.

T. Allen, Jr., of Boston, for plaintiff.

J. P. Carr and J. N. Worcester, both of Boston, for defendants.

CARROLL, J.

The plaintiff, an employee of an independent contractor, was injured on the afternoon of a clear day while working on the rear piazza of a three-story tenement house owned by the defendants. The contractor, who was ‘a general jobber,’ as a part of the repairs on the building agreed to put in angle irons at the junction of the floor timbers and the upper posts of the piazza. The plaintiff was adjusting these irons when he was injured by the giving way of a spreader bar, each end of which butted against an upright post called a king post. This spreader bar was about seven feet above the level of the piazza floor and about three feet below the beam of the floor above to which beam the angle irons were to be attached. None of the angle irons were to be attached to this spreader. The plaintiff contended that the spreader bar was not nailed to the post; it was the defendants' contention that it was toe-nailed to the post.

[1][2] The plaintiff was a painter and carpenter and, according to the testimony of the contractor by whom he was employed, ‘knew his business.’ He was standing on a stepladder near the spreader bar and in the course of his work touched or pressed against the bar in such a way that it gave way and he fell to the ground. He testified that he made no examination of the spreader bar; he saw it but could not say he ‘paid attention to’ it; he observed that it was tight to the post and had been painted. It appeared that after the contractor made his examination of the premises and before his work was started, the house had been painted and ‘a heavy coat of paint * * * covered the woodwork of the piazza.’

A servant of an independent contractor who undertakes to make repairs on the premises of the owner agrees to take them as he finds them. The owner is under no obligation to alter their condition or to make them safe, nor is he required to warn the servant of dangers which are obvious or could be discovered by reasonable inspection. The plaintiff agreed to work on the the house as it then was, and he assumed all the risks incidental thereto which were open to view or could have been seen if properly examined. Gainey v. Peabody, 213 Mass. 229, 100 N. E. 336;Cross v. Boston & Maine Railroad, 223...