Forgione v. Frankini Const. Co.

• Decision Date: 03 January 1941
• Citation: 308 Mass. 29,30 N.E.2d 819
• Parties: FORGIONE v. FRANKINI CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 29

30 N.E.2d 819

FORGIONE

v.FRANKINI CONST. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1941.

Report from Superior Court, Suffolk County; Walsh, Judge.

Action by Domenick Forgione against Frankini Construction Company for personal injuries. Verdict for defendant. On report from the Superior Court.

Judgment for defendant on the verdict.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

G. J. Tauro, of Boston, for plaintiff.

T. H. Mahony, of Boston, for defendant.

QUA, Justice.

In November, 1936, the defendant had a general contract with the Ford Motor Company to construct for that company an extension to a building in Somerville upon an area about one hundred and forty yards long and one hundred and ten yards wide. The defendant had entered into a contract with Louis Covino and Son Foundation Company, a partnership, to furnish all labor and material to complete the ‘caissons' necessary for the foundation. According to the plaintiff's testimony, on the morning of November 23 the plaintiff went to the scene of the work with one Manzoli and asked Louis Covino, a member of the partnership, for a job. Covino told the plaintiff and Manzoli to return at half past twelve. They returned at noon and again saw Covino ‘some 400-500 feet inside the gates.’ Covino told Manzoli to go to work and told the plaintiff to ‘wait a while’ and he, Covino, ‘would let * * * [the plaintiff] know.’ The plaintiff started to leave the premises, and on his way out ‘tripped into’ one of the holes dug for a foundation ‘caisson’ and was injured by an iron rod which projected upward from the concrete ‘caisson’ that was in the hole. Although there was evidence that on the day of the accident the defendant had on the job a general superintendent with ‘men,’ there is no evidence as to what, if any, work was actually being done at that time aside from the foundation work being carried on by the Covino firm.

If we assume, without deciding, that the defendant was general contractor, had control of the premises, and that a direction to the plaintiff by Louis Covino, a subcontractor laying the foundations, to return at half past twelve in order to ascertain whether the subcontractors would give the plaintiff work, was such an invitation as to place the plaintiff at the time of the accident in the position of a business invitee of the defendant general contractor, nevertheless we are of the opinion that there was no evidence for the jury tending to show that the defendant was negligent, and that on this ground the jury were rightly directed to find in its favor.

The report contains, in the form of a categorical statement of fact, a description of the condition of the premises at the time of the accident and of the work then being done by the Covino firm. From this it appears that holes were dug in the ground from two and one-half to three feet in diameter and from twelve to twenty feet in depth; that the earth excavated was piled around the holes; that frames were placed in the holes and concrete was poured in to a level of three and one-half to four feet below the surface of the ground; that into each of the concrete ‘caissons' thus formed were inserted four iron reinforcing rods or dowels, the greater portions of which were firmly embedded in the concrete, leaving the remainders projecting upward to a height of about two feet above the ground level; that these ‘caissons' were to receive the pillars which were to support the building above ground; and that the work was so laid out that the ‘caissons' were about twenty-one feet apart in all directions. There was evidence that after being poured the ‘caissons' were covered below the surface of the ground with hay or...