Garland v. Townsend
| Decision Date | 31 March 1914 |
| Citation | 217 Mass. 297,104 N.E. 731 |
| Parties | TOWNSEND; GARLAND v. TOWNSEND; GARLAND v. WHITNEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank E. Bradbury, of Boston, for plaintiff.
Walter I. Badger and Wm. Harold Hitchcock, both of Boston, for defendants.
The plaintiff, when at work as an electrician fitting a receptacle for light to a freight elevator at the second floor of the building, was struck in the face and his eyes injured by mortar falling from the hocks or trowels of plasterers at work in the penthouse at the top of the elevator well. While the jury could have found that he saw the men in the house, which covered an area twice the size of the well way, yet they further could find that, from his former experience when working under similar conditions as shown by his testimony he had no reason to apprehend any danger from mortar falling in such quantities as to make his position perilous especially as he further said that, from his point of view, he thought the canvas which covered the hoisting apparatus extended over the opening in the floor of the house far enough to prevent the mortar from dropping. But if the question of his due care or assumption of risk was for the jury, under Reardon v. Byrne, 195 Mass. 146, 80 N.E. 827, the defendants contend that no negligence on their part is shown.
The defendant Whitney, the general contractor for the erection of the building, let the contract for the plastering to the defendant Townsend, while the company for which the plaintiff worked had been hired by the owners of the building to install the elevators, and equip them with electric lights. The plaintiff, of course, was not a fellow servant of the workmen employed by other contractors, and the reciprocal duties of ordinary care which each contractor while at work on the premises owed to others, also engaged in the process of concurrent construction, are pointed out in O'Driscoll v. Faxon, 156 Mass. 527, 528, 31 N.E. 685.
The defendant Townsend on the evidence could not set the plasterers at work in the penthouse without taking reasonable precautions to ascertain whether the men were still employed in installing the elevators. It is obvious that, if not warned, they might be injured by falling plaster, which to some extent during application must drop from the hocks and trowels. But the uncontroverted evidence introduced by the plaintiff showed that one Bowman, employed by Whitney as general superintendent and supervisor of construction, The plastering had been somewhat delayed for the purpose of enabling the contractor for the elevators to finish the installation, and before beginning to plaster, Bowman, whose orders Townsend obeyed, assured Townsend's foreman that he was to have the exclusive use of the well way, and as a result the plasterers were directed to begin. The accident happened shortly after they began, and under this positive assurance and direction from one charged with the general oversight of all departments, this defendant, who is not shown to have known of the plaintiff's presence, had no reason to anticipate that further work on the elevator was to be done contemporaneously. It is plain that he is not chargeable with any negligence and the plaintiff must fail in the first action.
The defendant Whitney, however, is not as matter of law exonerated, even if the plastering was done by an independent contractor...
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