Fichtner v. Schneider

• Decision Date: 25 July 1972
• Citation: 285 N.E.2d 793,362 Mass. 394
• Parties: Robert FICHTNER et al. v. Joseph SCHNEIDER, trustee, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 793

285 N.E.2d 793

362 Mass. 394

Robert FICHTNER et al. v. Joseph SCHNEIDER, trustee, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1972.

Decided July 25, 1972.

Charles J. Wilkins, Boston, for plaintiffs.

Philander S. Ratzkoff, Boston, for Fred Vittiglio.

William H. Shaughnessy, Boston, for Burbanks Service, Inc.

John L. Lyman, Boston, for L. E. Muran Co.

Ralph E. Gott, Boston, for Joseph Schneider.

Before TAURO, C.J., and REARDON, QUIRICO and HENNESSEY, JJ.

REARDON, Justice.

In this action of tort the minor plaintiff and his father seek recovery for injuries and consequential damages as a result of an accident in which the minor plaintiff alleges he was injured while on a public way due to the negligence of the defendants. The declaration contains eight counts, one against each of the four defendants alleging negligence, and one count against each defendant for consequential damages. At the conclusion of the plaintiffs' opening in the Superior Court trial, the judge allowed a motion for a directed verdict on each count. The plaintiffs excepted.

The plaintiffs' attorney stated in the opening that on April 10, 1966, the minor plaintiff, then thirteen years of age, was playing with a friend on a public way, which street becomes a dead-end street at the point where it joins the building involved in this case. The building has a frontage on a different street. At the time of the accident the rear of the building was undergoing construction. A cement block wall was being erected from a platform three or four feet high. On top of the wall some of the blocks had apertures to receive two by four inch boards to be placed across the top of the blocks in connection with the roofing of the structure. The minor plaintiff was playing ball twenty to twenty-five feet from the building when the ball apparently rolled to within five or six feet of it. He proceeded to retrieve the ball, and as he picked it up heard someone yell, 'Watch him.' He turned around and in so turning slipped and 'put his hand down,' at which time 'a two by four came down and went beside him, and at the same time a concrete block came down and hit him on the hand.' He received serious injuries to the hand. A short time later his father arrived at the scene and saw the board and concrete block on which there was no cement or other binding. The building was owned by the defendant Schneider who rented it to the defendant L. E. Muran Company. The Muran Company hired the defendant Burbank Services, Inc. to do the necessary carpentry, and the defendant Fred Vittiglio to do the masonry.

In ruling on the motions for directed verdicts on the opening, the judge must take all statements contained therein as true and in the light most favorable to the plaintiff, and if on a reasonable view of the facts and rational inferences therefrom it 'can be deemed sufficient to support the plaintiff's cause of action, the motion must be denied.' Matranga v. West End Tile Co. Inc., 357 Mass. 194, 196, 257 N.E.2d 433, 434, and cases cited. BEAUMONT V. SEGAL, MASS., , 283 N.E.2D 858.^A The motions for directed verdicts should have been denied. While the opening does not detail direct evidence on the circumstances of the accident, it suggests that there was evidence sufficient to take the case out of the 'realm of guesswork.' Mabardy v. Campo, 344 Mass. 459, 462, 183 N.E.2d 116. The opening stated the facts from which the jury could infer that the concrete block was improperly and precariously placed on the top of an uncompleted wall. See Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 62 N.E. 379; Green v. Carigianis, 217 Mass. 1, 104 N.E. 571; Couris v. Casco Amusement Corp., 333 Mass. 740, 133 N.E.2d 250. The plaintiffs are under no obligation to describe the details of the defendants' negligence, it being enough if facts are alleged from which negligence might properly be inferred. Mabardy v. Campo, supra, 344 Mass. 462, 183 N.E.2d 116. Conceding the possibility that the actual fall of the block may have been due to the conduct of someone other than the defendants, it still could have been found that the negligence of the defendants was an effective contributing cause of the accident. But see Kimball v. George A. Fuller Co., 258 Mass. 232, 154 N.E. 762.

Since the action was brought against two contractors there is no contention that either of them had exclusive control over the agency or instrumentality involved in the accident. Such a...