Grier v. Guarino

• Decision Date: 20 May 1913
• Citation: 214 Mass. 411,101 N.E. 981
• Parties: GRIER v. GUARINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 411

101 N.E. 981

GRIER

v.GUARINO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1913.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action by George Grier against John Guarino. Judgment for plaintiff, and defendant brings exceptions. Overruled.

The requested rulings referred to in the opinion are as follows:

‘1. On all the evidence the plaintiff is not entitled to recover.’

‘3. The defendant was under no obligation towards the city's employés to cause the sides of the trench to be braced or held in place by sheeting.’

‘7. If the superintendent and inspector employed by the city of Boston in charge of work in the trench being done by the city was in the habit of placing jacks or braces across the trench for the protection of the employés of the city or of requesting the defendant or his superintendent to brace the place, and the city employés, including this plaintiff, looked to the city inspector to brace the trench when they entered it or to give notice to the defendant or his superintendent to brace it, and no notice was given to the defendant or his superintendent, the defendant would not be liable to the plaintiff for a falling of the trench, if the defendant and his superintendent did not know the bank was likely to fall and a reasonably prudent man would not have deemed it proper to brace it.’

‘10. If the jury believe the testimony of the witness Bocuzzi, and find that the facts are that he was in the trench when the plaintiff came along and told him to get out of the way so that he could enter the trench at that point and connect the supply pipe, and the witness told him in substance that the trench there was in a dangerous condition and likely to cave in on him, and in spite of this the plaintiff insisted on going into the trench and displacing the witness there, saying he would not be there long, the jury must find that the plaintiff took his chances of the bank falling down on him and cannot recover.’

John F. McDonald and Jas. M. Graham, both of Boston, for plaintiff.

Henry R. Scott, of Boston, for defendant.

DE COURCY, J.

The trench in which the plaintiff was working when he was injured was about 150 feet long, 2 1/2 feet wide, and between 6 and 7 feet deep; and a 16-inch water pipe was being laid therein. A cross-trench extended from the sidewalk to this main trench; and at the junction of the two the plaintiff was connecting the house supply pipe with the main pipe, when the earth at the corner of the bank fell in and crushed him.

[1][2] The defendant's first request was rightly refused, as there was evidence for the jury of the defendant's negligence and of the plaintiff's due care. As to the former it could be found on the evidence in the case that the earth at that place was ‘filled land,’...