Johnson v. H.P. Cummings Const. Co.

• Decision Date: 29 March 1909
• Citation: 201 Mass. 477,87 N.E. 894
• Parties: JOHNSON v. H. P. CUMMINGS CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 477

87 N.E. 894

JOHNSON

v.H. P. CUMMINGS CONST. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 29, 1909.

Report from Superior Court, Middlesex County; Jabez Fox, Judge.

Action by Josiah Johnson against the H. P. Cummings Construction Company. Verdict for plaintiff, and case reported from the superior court. Judgment for defendant.Vahey, Innes & Vahey (Philip Mansfield, of counsel), for plaintiff.

John Lowell and James A. Lowell, for defendant.

LORING, J.

The injury here in question happened under the following circumstances: The plaintiff had made a subcontract with the defendant, as the general contractor, to do the painting necessary in making over a dwelling into a schoolhouse. He was a painter of experience. At the time of the accident he was engaged in oiling a dado in the basement, part of the new construction. In order to look at ‘a space’ which he had just oiled, he stepped back into a hole in the floor about a foot to 14 inches square. This hole ‘had to be left open in order to get down to clean out and to make final tests of the sewer pipe which was below.’ ‘The room was not finished.’ The defendant had given orders to have all such places nailed down as matter of safety. Pursuant to that order, some days before the accident, this hole had been covered by boards which extended over and beyond the hole and above the floor. These boards had been taken up on the morning of the day in question, without orders from or the knowledge of the defendant, by an employé who was put in to sweep up the floor.

The case at bar comes within the doctrine that a defendant who employs the plaintiff in constructing or tearing down a building owes him no duty with respect to risks incident to that employment. Beique v. Hosmer, 169 Mass. 541, 48 N. E. 338;Boisvert v. Ward, 199 Mass. 594, 85 N. E. 849.

The plaintiff testified that he ‘had never noticed the hole in the floor or had known of its existence.’ For that reason he cannot complain that the hole was uncovered on the morning of the accident.

Judgment for the defendant.