Frangiose v. Horton & Hemenway

• Decision Date: 20 July 1904
• Citation: 58 A. 949,26 R.I. 291
• Court: Rhode Island Supreme Court
• Parties: FRANGIOSE v. HORTON & HEMENWAY.

58 A. 949

26 R.I. 291

FRANGIOSE

v. HORTON & HEMENWAY.

Supreme Court of Rhode Island.

July 20, 1904.

Action by Emanuel Frangiose against Horton & Hemenway. On demurrer to the petition. Sustained.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

E. D. Bassett, for plaintiff.

Walter B. Vincent, for defendant.

TILLINGHAST, J. This is trespass on the case for negligence. The declaration sets out that on the —— day of November, 1900, and for a long time prior thereto, the plaintiff was employed by defendants as a general helper in grading land, excavating cellars, putting in foundations, and erecting a brick building in the town of Cranston, in which work they were using a derrick, with a boom attached thereto connected with large buckets, for the purpose of raising the dirt from the excavation below, and dumping it upon a bank on the edge of said excavation, and that it was the duty of the plaintiff, while so employed, to do whatever work he was directed to do by the defendants, and, in their absence, by their foreman; and the plaintiff avers that it was the duty of the defendants, when assigning him to a work which, under his general employment, was novel to him, and the danger whereof was not obvious, to explain to him the danger of said work, and to fully inform him in regard thereto. He further avers that on said —— day of November he was directed by defendants' foreman, who was plaintiff's superior, and had authority to direct him in the premises, peremptorily to go upon said bank during a high wind, and assist in working the boom of the derrick, by swinging it, by means of a rope connected therewith, to dump the buckets of dirt as they were raised from the excavation, which work was novel to the plaintiff and dangerous on account of the high wind, the danger whereof was not obvious, and that no notice of said danger was given to the plaintiff by the defendants' foreman, as he was in duty bound to do, but, on the contrary, the plaintiff was assured by said foreman that there was no danger in said work. The plaintiff further avers that, while in the exercise of due care on his part, and while engaged in said work as directed, he was violently thrown from his footing on said bank by the swinging of the boom of the derrick, caused by the high wind aforesaid, and was dragged over the stones, gravel, and dirt on said bank by the rope which was attached to the boom, whereby he was permanently injured, etc.

To this declaration the defendants have demurred on various grounds, among which are the grounds that it appears therefrom that the injury alleged to have been sustained was one of the risks of the employment, and also that the danger set forth was an obvious one, and hence the plaintiff assumed the risk thereof.

We think the demurrer must be sustained. The danger of operating the boom of the derrick in a high wind was manifestly an obvious one, and hence one which the plaintiff assumed. He does not allege that he was a person of tender years, or lacking in ordinary intelligence, and it must therefore be presumed that the natural effect of a high wind blowing against a movable physical object, like that of the boom which he was set to operate, was within his knowledge and comprehension. Pintorelli v. Horton & Hemenway, 22 R. I. 374, 48 Atl. 142; King v. Interstate Railway Co., 23 R. I. 583, 51 Atl. 301; Baumler v. Narragansett Brewing Co., 23 R. I. 430, 50 Atl. 841; Russell v. Riverside Mills, 24 R. I. 591, 54 Atl. 375; Paoline v. Bishop Co., 25 R. I. 298, 55 Atl. 752; Read v. Warwick Mills, 25 R. I. 476, 56 Atl. 679.

It is to be observed that the plaintiff alleges that he was employed "as a general helper" in doing the various kinds of work specified in the declaration, and also that it was his duty, while so employed, to do whatever work he was directed by the defendants to do, and...