Metayer v. Grant

• Decision Date: 24 November 1915
• Citation: 110 N.E. 310,222 Mass. 254
• Parties: METAYER v. GRANT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 254

110 N.E. 310

METAYER

v.GRANT et al.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 24, 1915.

Exceptions from Superior Court, Bristol County; John D. McLaughlin, Judge.

Action by Jean B. Metayer against J. William Grant and others. Verdict was in substance directed for defendants, and plaintiff excepts. Exceptions overruled.

J. W. Cummings, C. R. Cummings, and J. W. Nugent, all of Fall River, for plaintiff.

Edward I. Taylor and John W. Britton, both of Boston, for defendants.

PIERCE, J.

The plaintiff, while in the employ of the defendants, because of the fall of an insecure, unsafe and unstable piece of small timber, tumbled into and down a stair hole and was injured.

At the close of the evidence the presiding judge at the request of the defendants ruled that the plaintiff could not recover on either the first or second counts of his declaration; and it is now agreed that such ruling shall have the effect of a directed verdict for the defendants.

To justify the direction of a verdict for the defendants under the rule recognized and followed in Lindenbaum v. N. Y., N. H. & H. R. R., 197 Mass. 314, 84 N. E. 129,Cohen v. Henry Siegel Co., 220 Mass. 215, 107 N. E. 912,Robichaud v. N. Y., N. H. & H. R. R., 220 Mass. 250, 107 N. E. 975, and Shea v. American Hide & Leather Co., 221 Mass. 282, 109 N. E. 158, we must assume that the presiding judge disregarded any unfavorable testimony of the defendants and of the witnesses and accepted the testimony of the plaintiff and of his witnesses only so far as such testimony established or tended to prove the allegation of a breach of duty of the kind described and set out in the two counts of the declaration. So considered the testimony warranted the finding of the following facts and inferences of fact.

The plaintiff, a carpenter with an experience of six years, entered the employment of the defendants, who were general contractors and builders, four months before the accident. At the time of his injury the defendants employed with the plaintiff five carpenters, one of whom was a boss or foreman. The defendants were causing to be erected for themselves a cottage house. The plaintiff began work thereon a week or more before the accident, just after the laying of the flooring of the first floor and the erection of two of the corner posts. Thereafter the plaintiff assisted generally, specifically helping to erect posts, laying the rafters and beams and a part of the second story flooring. He also worked on the first and second floors in the erection of partitions and in the placing and nailing of outside braces, but did not work upon the inside braces, or about them until shortly before the accident. He knew that it was the custom of carpenters to nail inside braces, but did not know or seek to know whether the inside braces on the second floor were nailed or spiked. The inside braces were designed to straighten the building by pressure exerted upon the partition walls and to support the walls in the position attained until the walls were made fast and immovable by the laying of the floors.

The brace which caused the injury consisted of a 2x3 piece of timber, 12 feet long, weighing about 30 pounds, used in combination with a cleat of wood nailed or spiked to the floor. A ‘crow foot’ cut in one end of the timber was placed against the partition cap, and the other end rested upon the floor in such position relative to the cleat that as the timber was pushed or forced into contact with the cleat a wedge was formed....