Johnson v. H. P. Cummings Construction Co.

87 N.E. 894, 201 Mass. 477, 1909 Mass. LEXIS 767

• Court: Massachusetts Supreme Judicial Court
• Decided: March 29, 1909
• Status: Published

Opinion

Loring, J.

The injury here in question happened under the following circumstances. The plaintiff had made a sub-contract with the defendant, as the general contractor, to do the painting necessary in making over a dwelling into a school house. 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 fourteen inches square. This hole “ had to be left open in order to get down to, to clean out and to make the 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 a 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 employee 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. Boisvert v. Ward, 199 Mass. 594.

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.