Whalen v. Shivek

• Decision Date: 13 June 1950
• Parties: , 33 A.L.R.2d 74 WHALEN v. SHIVEK et al. (two cases). WHALEN v. ROSSAND CONST. CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 393

93 N.E.2d 393

326 Mass. 142, 33 A.L.R.2d 74

WHALEN v. SHIVEK et al. (two cases).

WHALEN v. ROSSAND CONST. CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 4, 5, 1950.

Decided June 13, 1950.

J. S. McKenney, Lynn, J. N. Esdaile, Boston, for plaintiff.

J. W. Lobdell, Boston, for defendants Shivek et al.

D. H. Fulton, Boston, for Rossano Const. Co.

L. Brown, Boston, W. P. Cunningham, Cambridge, for Modern Die & Machine Co.

Before QUA, C. J. and RONAN, WILKINS, SPALDING, and COUNIHAN, JJ.

SPALDING, Justice.

Shortly after three o'clock on the afternoon of January 7, 1946, William B. Whalen, the plaintiff's intestate, was killed when a number of large stone blocks, forming the parapet of a building, fell on him as he was walking along the sidewalk on Hancock Street in the Dorchester section of Boston. His administratrix brings these actions against the owners of the building, Jennie Shivek and Jennie Vershbow (hereinafter called the owners); the tenant thereof, Modern Die & Machine Company (hereinafter called the tenant); and Rossano Construction Company, Inc. (hereinafter called the contractor), which the tenant had engaged to do certain work on the building.

In the case against the owners the declaration is in four counts. Counts 1 and 2 are based on negligence and seek recovery respectively for conscious suffering and death. The third and fourth counts are for conscious suffering and death and differ from the first and second counts in that they allege a nuisance. The declarations in the actions against the tenant and the contractor are based on negligence, each declaration containing a count for conscious suffering and a count for death. At the conclusion of the evidence the owners, the tenant, and the contractor presented motions for directed verdicts, which were denied. A verdict was returned for the plaintiff on each count in each action. Exceptions to the denial of these motions, to numerous rulings on evidence, and to portions of the charge and the judge's action with respect to various resquests for instructions bring the cases here.

The following facts could have been found: On October 9, 1945, the owners acquired title to a building in Dorchester and on the same day leased it to the tenant. It was an 'L' shaped one story building, one portion of which fronted on Hancock Street and another on Pleasant Street. The wall of the building on Hancock Street--and it is that wall with which we are concerned here--was about eighteen feet high and thirty-five to forty feet long. It was constructed of cement or cast stone blocks. In the middle of the wall was a sliding door, on either side of which was a large window. Running along the top of the windows and the door was an iron rail which supported a concrete beam. The rail protruded out beyond the beam, forming a support for a facing of cast stone four inches thick which extended to the top of the concrete beam or roof. Extending above the roof for three feet was a parapet consisting of cast stone blocks of alternating thickness backed by bricks. Including the blocks and the bricks, the thickness of the parapet was about twelve inches. Originally the parapet above the door was capped by an ornamental pediment, but this had been removed prior to the purchase of the building by the present owners.

The building described above had been built in 1926 for use as a garage. The tenant, however, intended to use it for a machine shop, and on December 12, 1945, entered into a contract with the contractor which called for extensive alterations. These included the removal of the parapet mentioned above and its replacement with brick. Prior to the accident on January 7, 1946, the condition of the wall and parapet on the Hancock Street side of the property had been observed by several witnesses and the following is a summary of what they saw: The mortar between the stone blocks of the parapet was loose or missing, leaving a space through which 'you could see daylight.' Between the stone front and the bricks behind it was an opening, large enough for a boy to put his hand into, that ran the entire length of the wall. The stone blocks in the parapet tilted out toward the street. The extent of this tilt was variously estimated as from one and one half inches to four inches.

Prior to and at the time of the accident two employees of the contractor were observed working either on the brick backing or on the stone facing of the parapet with hammers, crowbars, and various other tools. There were no barriers of any kind placed on the sidewalk below to keep people from passing in front of that portion of the building where the work was being done. At the time the plaintiff's intestate was injured all of the cement blocks in the facing and parapet on the Hancock Street side of the property fell onto the sidewalk. These blocks were about ten inches high and twenty inches long and weighed from one hundred seventy-five to two hundred pounds. It is conceded that the plaintiff's intestate was in the exercise of due care, that the accident caused his death, and that there was evidence of conscious suffering. Other evidence will be recited as occasion requires.

1. The contractor's motion for a directed verdict was rightly denied. The

evidence amply warranted a finding that the men working on the parapet at the time of the accident were employees of the contractor engaged in performing work under the contract, and no contention has been made to the contrary. In carrying on its work on that part of the building which was immediately adjacent to the sidewalk the contractor was under a duty to perform it in a manner that would not create an unreasonable risk of harm to members of the public who might use the sidewalk. The evidence, in our opinion, warranted a finding that this duty was violated. The facts that at the time the contractor's employees were working on the parapet it was in an obvious state of disrepair; that it contained heavy cement blocks and was adjacent to a public sidewalk; that it tilted appreciably toward the street; that the contractor's employees were working on it with hammers, crowbars, ¹ and other tools; and that no barriers of any kind were erected to prevent people from walking on the sidewalk below, were sufficient to warrant a finding of negligence on the part of the contractor. O'Neil v. National Oil Co., 231 Mass. 20, 26, 120 N.E. 107; McGinley v. Edison Electric Illuminating Co. of Boston, 248 Mass. 583, 587, 143 N.E. 537.

The contractor argues that the proof against it left the question of its liability in the realm of speculation and conjecture. But we think that the evidence that the this. True, there was evidence that the parapet was in a defective condition at the time the contractor commenced to work on it. For this condition, of course, it was not responsible. But it was responsible for what was done thereafter. And, as we have indicated above, one of the circumstances to be taken into consideration on the question of its negligence was the condition of the parapet when it started to work on it. That the owners or the tenant may also be liable because of the condition of the parapet does not relieve the contractor of liability if its negligence contributed to cause the injury complained of. Edgarton v. H. P. Welch Co., 321 Mass. 603, 611, 74 N.E.2d 674, 174 A.L.R. 462. The jury could have found that the acts of the contractor's servants were a substantial factor in causing the injury. That is sufficient. Corey v. Havener, 182 Mass. 250, 65 N.E. 69; Qulighan v. Butler, 189 Mass. 287, 293, 75 N.E. 726; Shultz v. Old Colony Street Railway, 193 Mass. 309, 321, 79 N.E. 873, 8 L.R.A.,N.S., 597, 118 Am.St.Rep. 502, 9 Ann.Cas. 402; Field v. Gowdy, 199 Mass. 568, 572, 85 N.E. 884, 19 L.R.A.,N.S., 236; Burke v. Hodge, 217 Mass. 182, 184, 104 N.E. 450; Camp. v. Rex, Inc., 304 Mass. 484, 488, 24 N.E.2d 4.

During the course of the trial counsel for the contractor obtained from one witness (who had demonstrated with gestures how the crowbar was used on the parapet) a description of the gestures for the record. Another witness gave a description of a sketch of the parapet which he had made and which had been marked as a chalk. With respect to the witnesses' descriptions of the sketch and gestures the judge ruled, in substance, subject to the contractor's exception that the jury were not bound by them and could consider the gestures and the sketch themselves if they saw fit. There was no error. Because a witness may have described a gesture or a sketch does not entitle a party to a ruling that the description alone can be treated as evidence. True, the description gets into the record and the gesture and sketch do not. But that is a difficulty inherent in the trial of cases. Moreover, many gestures and sketches might be difficult to describe accurately in words. Views ordinarily cannot be accurately reproduced in a record, yet this has never been considered a sufficient reason for not permitting them or for limiting the judge or jury to considering only so much of the view as may have been described in court. See Kenney v. Ciborowski, 304 Mass. 371, 372-373, 24 N.E.2d 17.

The contractor argues that it was prejudiced by the manner in which the judge dealt with the contract and specifications under which the alterations on the building were being made. We see no basis for this contention. The judge charged the jury that the contract was being admitted on the question of control and that nothing contained in it 'enlarge[d] upon the duty owed by the contractor to any member of the public.' At the conclusion of the charge there was a colloquy between the judge and counsel for the contractor, during which the latter directed the judge's attention to provisions in the contract and specifications by which the contractor was to carry liability insurance protecting the tenant against claims for personal injuries and death...