Follansbee v. Ohse

• Decision Date: 03 January 1936
• Parties: FOLLANSBEE v. OHSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 48

199 N.E. 387

FOLLANSBEE

v.OHSE.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 3, 1936.

Report from Superior Court, Middlesex County; Macleod, Judge.

Action of tort by Fred A. Follansbee against George A. Ohse. On report from the Superior Court, where, after the recording subject to leave reserved of a verdict for the plaintiff in the sum of $6,500, a verdict was ordered entered for the defendant.

Judgment for defendant.

R. J. Hartford, of Boston, for plaintiff.

G. E. Roewer, of Boston, for defendant.

CROSBY, Justice.

This is an action of tort in which the plaintiff seeks to recover for personal injuries sustained by him while using a staging in painting the defendant's house, and alleged to have been caused by negligence of the defendant.

The plaintiff testified as follows: He had been a painter for nearly fifty years. He made an agreement with the defendant to paint his house for $130. It was a two-and-a-half-story wooden house with a pitch roof; the gutters were about twenty-six or twenty-eight feet above the ground and in bad condition. The plaintiff inspected the gutters: he first looked at the left side of the house and could see from the ground that the gutter at the roof was leaking and unsafe for him to use in swinging his staging from. On the same day he notified the defendant that the gutters of the house needed repairing and that he could not go on with the work until they had been fixed; the defendant replied that he would employ a carpenter and have the gutters repaired. The plaintiff and his workman, one Cummings, commenced painting the front of the house on which there were no gutters; after finishing that part they painted the back of the house. While the plaintiff was working there on a piazza, the defendant called up to him and said ‘The gutters are all right now, go ahead.’ Before this time he had seen the defendant's carpenter working on the premises; after this conversation, he painted the left side of the house, using the gutter, which was new, to place his hooks in from which to swing the staging. After finishing the left side, he and his employee worked on the right side, first testing the gutter and finding it apparently safe. There was a bay window on the right side about two thirds back from the front of the house; the distance from the bay window to the back of the house was about fifteen or eighteen feet. When the plaintiff and his employee came to paint the portion of the right side in the rear of the bay window, they took the staging and an extension ladder there. A gutter hook is made of iron or steel, and there is a block attached to the lower end into which the falls go; at the tip of the hook there is a cross piece, about eight or ten inches in length, which rests in the gutter when the hook is in use. Cummings went up the extension ladder carrying a gutter hook, which he inserted into the gutter; then the plaintiff put a board between the ends of the falls and jumped up and down on it for the purpose of testing the gutter to determine whether it was strong enough to support the staging. Cummings remained on the ladder near where the hook had been placed to observe the gutter when the board was jumped upon, and reported that the gutter seemed all right. He put another hook in the gutter and made the same test, and told the plaintiff that the gutter appeared to be all right. Cummings was an experienced painter. The plaintiff and Cummings went upon the staging and commenced painting. Cummings took a step or two for the purpose of speaking to him and then, without warning, the right-hand side of the staging fell down and he fell to the ground and was seriously injured. The plaintiff did not use a tie-line on this job; he testified that there was nothing on the roof that he knew of to which a tie-line could be secured. He did not say that everything was all right before the carpenter left the job; he did not see the gutter on the right side of the building until he went to that side for the purpose of painting it; so far as he could tell from looking at it from the ground, it was all right; he relied on what the defendant told him about the gutters being all right, and on the test he and Cummings made by jumping on the falls and inspecting the gutter.

The plaintiff's employee Cummings testified that while he and the plaintiff were working on the rear of the house he saw the defendant come to a point below the piazza where they were working and heard the defendant say to the plaintiff: ‘The gutters are all right now, go ahead’; that after finishing the rear of the house he and the plaintiff painted the left-hand side of it, swinging the staging on hooks inserted in the gutter; that the gutter was new; that after painting that side of the house they commenced the right side; that he put the hooks in the gutter and watched it while the plaintiff jumped on the falls, that the gutter seemed all right; that after he had been working on that side about half an hour the gutter above the plaintiff gave way and the right end of the staging fell to the ground taking the plaintiff with it; that the piece of the gutter which fell was six or eight feet long; that the wood in the trough was cracked and blackened, that the wood inside was rotten; that the nails had broken off and had not pulled out; that the nails were badly rusted and the nail holes were enlarged; that he thought it was right for them to swing the staging from the gutter. There was other evidence presented by the plaintiff tending to show that the gutter on the right-hand side of the house was in a decayed condition; that the piece that fell to the ground was painted and looked all right when in place, but that the inside of it was very rotten.

It could have been found by the jury from the testimony of the plaintiff that when he went to the defendant's house for the purpose of painting it he inspected the gutters, and found they were in bad condition, and that on the same day he notified the defendant that he could not go on with the work until they were repaired; that ...