Walker v. Benz-Kid Co.

• Decision Date: 29 June 1932
• Citation: 181 N.E. 799,279 Mass. 533
• Parties: WALKER v. BENZ-KID CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 533

181 N.E. 799

WALKER

v.BENZ-KID CO.

Supreme Judicial Court of Massachusetts, Norfolk.

June 29, 1932.

Exceptions from Superior Court, norfolk County; Nelson P. Brown, Judge.

Action by Leander Walker against the Benz-Kid Company. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.F. J. Squires, of Norwood, and E. J. Flavin and D. J. Cohen, both of Boston, for plaintiff.

Frederick G. Katzmann and Katzmann & Vahey, all of Plymouth, and Parsons, Wadleigh & Crowley, of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff on January 10, 1928. At that time he was a member of a partnership engaged in the painting business, and was under an oral contract to paint two wooden buildings occupied by the defendant as lessee. On the day before the accident he began to paint a small pitched roof wooden building, and hung all the appliances on this building by attaching to the ridgepole two peakhooks, about eighteen feet apart, to which were attached three-quarter inch ropes running down the roof, and attached to two gutterhooks placed three or four inches above the gutter on the shingles, thus holding them fast and preventing swaying. Attached to the two peakhooks were separate life lines which ran down the roof and hung over the edge of the roof and gutter to the staging below. The staging was hooked to eyes on the lower part of the gutterhooks which curved around the gutter and extended vertically a few feet below the gutter. At the time of the accident the painting had been finished and the plaintiff was in the act of removing the gutter hooks. In order to do this he went upon the roof taking the lifeline in his left hand, ‘edged along the edge of the roof with his weight thrown on his left knee * * * and with his right foot ‘toed into’ the gutter and using the life line for support * * * [he] tested the gutter as he moved along.' He had unfastened and removed one of the gutterhooks, and was proceeding to the other in like manner when he fell from the roof and was injured. At the same time a section of the gutter ten or twelve feet long broke and fell. He contends that there was a latent defect in this part of the gutter of which the defendant had knowledge, or ought reasonably to have known of, and that the defendant was negligent in not warning him of this defect.

At the close of the plaintiff's case the defendant rested without offering any evidence. The case was then submitted to the jury, and after the return of a verdict in favor of the plaintiff, the judge with the consent of the jury, reserved leave to enter a verdict for the defendant in accordance with G. L. c. 231, § 120. Thereafter, the judge erred a verdict for the defendant, and the plaintiff duly claimed an exception.

The plaintiff assumed all the obvious risks of his employment, but the defendant was bound to warn him of any latent defect in the premises which he could not discover upon reasonable observation and inspection, and of which the defendant had knowledge, or in the exercise of reasonable care should have had knowledge. Mulchey v. Methodist Religious Society, 125 Mass. 487;Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288, 76 N. E. 1048;Crimmins v. Booth, 202 Mass. 17, 88 N. E. 449,132 Am. St. Rep. 468;Hall v. Henry Thayer & Co., 225 Mass. 151, 113 N. E. 644;Pilling v. Hall, 251 Mass. 425, 146 N. E. 689;Forance v. Bigelow-Hartford Carpet Co., 257 Mass. 507, 154 N. E. 174;Favereau v. Gabele, 262 Mass. 118, 159 N. E. 738. ‘The owner of a staging who furnishes it for the use of an independent contractor ordinarily owes the same duty to an employee of the contractor that the owner would owe to his own employee using the same staging.’ Gray v. Boston, Revere Beach & Lynn Railroad, 261 Mass. 479, 482, 159 N. E. 441, 442.

There was no evidence which would warrant a finding that there was any defect latent or other in the gutter. There was evidence that the piece of gutter which fell was joined to the next section of the gutter ‘in a square of butt joint.’ An expert builder called by the plaintiff testified that ‘a ‘square butted joint’ * * * in his opinion was not a good form of construction, but a mitered or diagonal joint was better because there is a better and thicker nailing surface and better holding power and a mitered joint is twice as strong as a square butt joint, unless there is a special bearing surface underneath such as * * * rafters extending out beneath the joint.' There was no evidence as to whether or not there was or not any such special support. This evidence does not show a defect or an improper form of construction in the gutter. It merely tends to show that it is not so good as another form, but falls far short of showing that it is a defect. Moreover, it is not shown it was not obvious that the joint was square. If it be assumed that it was obvious and constituted a defect, the defendant is not liable, because the plaintiff assumed all the obvious risks incident to his use of the apparatus or appliances upon which he was employed to work, and the defendant had no duty to change the mode of construction. Sullivan, v. New Bedfore Gas & Edison Light Co., 190 Mass. 288, 292, 76 N. E. 1048;Gainey v. Peabody, 213 Mass. 229, 100 N. E. 336;Murray v. Nantasket Beach Steamboat Co., 248 Mass. 587, 589, 143 N. E. 623;Favereau v. Gabele, 262 Mass. 118, 159 N. E. 738. One Wilkins called by the plaintiff testified that late in December preceding the accident he noticed a short piece of the gutter had a slight separation where jointed to the next section, and he could see this only when he was on a ladder at a point three or four feet directly under the gutter. There is no evidence to show that this slight separation was a defect or tended to weaken the strength of the gutter in any way. The description of its appearance after it had fallen cannot be construed as indicating a defective condition. There was no evidence to show that it fell because of any weakness at the joint or else where, nor that a sound, well constructed gutter would stand the strain put upon it by the plaintiff. Gutters on buildings ordinarily are for the conveyance of water, and it cannot properly be found that a gutter is defective because it fails to hold a part or all of the weight of a man using it as a means of moving along the edge of the roof.

If it be assumed that the slight separation at the joint constituted a defect, there is no evidence that such defect was the cause of the accident. The plaintiff testified...