Eisner v. Horton , 200 Mass. 507 ( 1909 )

Knowlton, C. J.

The plaintiff was working in the erection of a building of steel construction, with granite walls. The tenth floor had been laid in terra cotta, and it had upon it a large number of planks, resting upon the iron floor-beams and the terra cotta. They were put there chiefly for the protection of the floor from stones and other material, which they supported in large quantities, and which had been brought there for use in the construction of the next story of the building. From the approach by the elevator, in the centre of the building, there was a line of planks laid side by side to a point near the front of the building, which furnished a convenient way for the passage of men and the transportation of material, and adjacent to the front wall there was a similar line of planks on which the masons stood in laying the wall, and other men passed in moving stone and bricks and mortar to be used in the construction of the wall. The plaintiff testified that this runway was four planks in width, measuring out from the wall, while one of his witnesses said it was two or three planks wide. There were places in the terra cotta floor between the iron floor beams where openings had been left for pipes or wires to pass. The planks were put in place by the workmen as they were needed, and were laid upon the floor, without being fastened. There was uncontradicted testimony from the plaintiff and others, that this mode of using planks and of leaving openings in the terra cotta was a usual and proper mode of construction. There was no contention that the defendants failed to furnish a sufficient supply of suitable planks. As the plaintiff and one Garity were walking along the line of planks by the front wall, carrying a stone about three feet long, eighteen inches high, and from four to eight inches thick, Garity going in front, and holding one end of the stone up against his back, and the plaintiff going behind, holding the stone in front of him, one end of a plank on which the plaintiff stepped went down and his leg went through the floor, the stone fell, and the plaintiff fell and broke one of his fingers. The evidence tended to show that the end of the plank was left, or had slipped, so that it was not supported as it should have been by the terra cotta floor, and the weight upon it caused it to go down. The plaintiff’s principal contention is that there was negligence of the superintendent in failing to discover this condition of the plank and to make it safe.

The planks were not there as a structure. They were for use by the workmen as needed for their convenience and the protection of the floor. This was a kind of use that might properly be intrusted to ordinary workmen. There were no serious dangers involved in the use of them by reason of an occasional small hole in the terra cotta floor. If workmen were reasonably careful in putting them down and in observing their condition afterwards, there was no such danger of an injury as called for systematic inspection. There was nothing to show whether this plank had been out of position for any considerable time before the accident. It seems probable that it had been slid a little at some time by an accident, or by the negligence of some workman. The plaintiff had been accustomed to work upon buildings of this kind for six or eight years, and he, or any other workman of experience, could see whether a plank over an opening was out of position, and could judge of the risk of such an accident as well as the superintendent could. To hold that it was the duty of a superintendent, under such circumstances, to go about the building in every place where a plank was over an opening and observe its position, with such frequency as to prevent the possibility of such an accident, would impose upon the builder an unreasonable responsibility.

We are of opinion that the risk from the use of planks in this way was one of the risks of the business which the plaintiff assumed when he entered the defendant’s service; and that there was no evidence of negligence on the part of the defendants or their superintendent. '

Exceptions overruled.