Goldstein v. Slutsky

• Decision Date: 29 January 1926
• Citation: 150 N.E. 326,254 Mass. 501
• Parties: GOLDSTEIN v. SLUTSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 501

150 N.E. 326

GOLDSTEIN

v.SLUTSKY.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1926.

Exceptions from Superior Court, Suffolk County; Frederick J. Macleod, Judge.

Action of tort by Nathan Goldstein against Max Slutsky to recover for personal injuries caused by falling into a pit in the cellar of premises owned by defendant. Entry of verdict for plaintiff directed, and defendant excepts. Exceptions overruled.

Defendant requested the following rulings, which were denied:

That upon all the evidence the plaintiff is not entitled to recover.

That upon all the evidence the plaintiff was not in the exercise of due care.

That upon all the evidence the plaintiff was guilty of contributory negligence.

That upon all the evidence the defendant was not negligent.

That upon all the evidence the plaintiff was an independent contractor.

That upon all the evidence the defendant owed the plaintiff no duty other than to refrain from willfully injuring him or setting a trap for him.

That upon all the evidence the plaintiff was an independent contractor and therefore the defendant owed him no duty other than to refrain from wantonly and willfully injuring him.

That upon all the evidence the defendant was not guilty of any wanton and willful negligence.

D. Short, of Boston, for plaintiff.

E. I. Taylor, of Boston, for defendant.

WAIT, J.

The plaintiff, a roofer and sheet metal worker, made a contract with the defendant to repair the gutters on the front piazzas of a three-flat apartment house belonging to the defendant who lived in the second floor flat. In searching for some tins of paint which he had left on one of the piazzas to remain till needed in his work but which had disappeared, he went to the defendant's flat to inquire about them. The defendant was not there, but his wife told the plaintiff that her husband had put them in the cellar. She gave him the key and asked him to get the tins, telling him that there was a bench in the cellar and that he would find the paint in the third closet from the door. The plaintiff never had been in the cellar, although on one occasion he had looked into it from the doorway. He had not seen any hole in the floor. He went to the cellar. It was dark and unlighted. He saw a bench and as he was going toward it he fell into an unguarded pit in which the heater for the building stood. Although injured, he made a hurried and unsuccessful search for the paint, and then went back and told Mrs. Slutsky what had happened. Later, with her, he went again to the cellar; and there they found the tins, apparently in the place where she had told him to look for them. He returned to his painting, but finding that his foot was swelling, he went to the Slutsky apartment to see about having a doctor. She said they must wait till Mr. Slutsky returned. When the husband came he found the plaintiff nursing his foot, asked what had happened, and was told by his wife, ‘I sent him over to take the paint and I told him to go to the other place and naturally he fell in.’ ‘Why not tell him the hole?’ he inquired; and the wife answered ‘I forgot all about it.’ Slutsky thereupon called a doctor.

The plaintiff's action for damages was tried without a jury. The evidence material to the exceptions came solely from the plaintiff and his physician. Its substance has been stated. The defendant offered no evidence, but made eight requests for rulings. The judge filed the following ‘findings and rulings':

‘1. The plaintiff was an independent contractor hired by the defendant to repair the roofs of the piazzas on the second and third stories of the defendant's building. The accident and resulting injuries to the plaintiff are not attributable to the risks incident to his employment, but to an extraneous hazard caused by the defendant's act in removing, without the knowledge or consent of the plaintiff, certain cans of paint belonging to the plaintiff to a closet in the cellar of the building. 2. In the course of his employment prior to the accident the plaintiff had not entered the cellar and, but for the gratuitous act of the defendant, would not have had, and could not reasonably have contemplated having, occasion to do so either in going to of from his work or in the actual performance thereof. 3. The plaintiff in going to the cellar at the direction of the defendant's agent for the purpose of recovering the paint was engaged in a lawful errand, and had the status of an invitee rather than of a bare licensee. 4. In a portion of the cellar which the plaintiff was likely to traverse in the prosecution of his errand there was a pit or depression about a foot and a half deep. This pit was not guarded by a railing or otherwise protected, and the cellar at the time of the accident was unlighted. 5. The plaintiff was in the exercise of due care but the defendant, under the circumstances disclosed, was negligent in failing to warn the plaintiff of the existence of the pit in the cellar floor. The plaintiff sustained personal injuries by reason of falling into said pit and for such injuries the defendant is liable. 6. Subject to the limitations of paragraph 1 hereof, number 5 of the defendant's requests for rulings is given but the remainder...