Murphy v. Greeley

Negligence — Personal Injuries — Evidence — Due Care. A contractor to do the carpenter-work on a brick building in process of erection, who hires an experienced carpenter in the full possession of his faculties to do the furring on a room, is not bound to maintain artificial lights to prevent his wandering out of a regular passageway, and will not be liable to him if he so wanders in the darkness, and, falling through an opening in another room, is injured. Evidence of the usage of builders as to guarding the openings in the floors of buildings in process of construction is competent on the question whether an experienced carpenter, who is injured by falling through such an opening, was in the exercise of due care.

Tort for personal injuries occasioned to tbe plaintiff’s intestate, by falling through an opening in tbe first floor of a building in process of erection, while in the defendant’s employ. At the trial in the Superior Court, before Mason, J., it appeared that the defendant had made a contract to perform all the carpenter-work required in the construction of a family hotel. At the time of making this contract, the defendant saw the plans of the building, including the plan of the first floor, and for a long time prior to the accident had been upon the premises five or six times every week, and was familiar with the different parts of the building. The defendant began his work under his contract, and prior to the time of the accident had laid the flooring on the first floor, and had completed some other parts of the carpenter-work in the building. In laying this floor the defendant had, following the plan, left, in the floor of a room marked “store-room,” an opening which was intended for a stairway to the cellar, in which at the time of the accident no staircase had been built. On January 6, 1885, the plaintiff’s intestate, James Sinnott, was employed by the defendant’s foreman, who was authorized to employ help, to fur a certain room in the building other than the store-room. Sinnott was fifty-five years of age, a carpenter by trade, with full possession of all his faculties, and had worked on carpenter-work in the construction of buildings for more than twenty years. Sinnott was to work for so much per square, and nothing was said to him as to the hours when he was to work. No contract had been made with him for furring any other rooms, and under his contract he had no employment or business taking him into the store-room. The only way of going, as Sinnott testified, from the street entrance of the building to the room where he was employed, or of returning from’ that room to the street, was by a passageway which, at about the centre of the building, led through an opening adjoining a passageway leading into the store-room. In the neighborhood of both these passageways it was at times very dark, and was so at the time of the accident, so that a person who had just come in from the light could not see his hand before his face. One witness testified that on the night of the accident, when he was retiring from his’ work (about ten minutes after Sinnott quit work), he got lost in this same locality, came near getting into the store-room passageway, and only found his way by lighting a match. All these facts in relation to the position of these passageways, their darkness, and the existence of this opening in the store-room, were known to the defendant, and to his foreman. On January 7,1885, Sinnott came to the building as agreed, and, passing from the entrance along the passageway to the room which he had contracted to fur, commenced his work there, and remained in that room during the day. At night he did not retire from the building by the passageway, but passed out through a window opening on to the street from the room where he was at work. The next day in like manner he returned thi-ough the passageway to his work; remained in the room all day as before, stopped work at about five o’clock on account of the darkness, and, being unable to go out of the window as on the evening previous on account of its having been closed and fastened, started for the street entrance of the building by the passageway. When he arrived opposite the passageway leading into the store-room, he became confused on account of the darkness, not having before passed out of the building in this way, and supposing that the passageway leading into the store-room was the passageway which he ought to take, wandered, feeling with his hands and feet, into the storeroom, and fell into the opening. Sinnott did not know of the existence of this opening, and no express notice was given to him of its existence, either by the defendant or Higgins, and no notice at all except such, if any, as can be implied from the facts stated. There was no guard or railing around the opening, or at the entrance to the passageway leading to the store-room, and no light was put up at any point, either to mark the proper passageway out of the building or to mark the locality of the opening. All the brick partitions, as also all the brick-work of the entire building, which was five stories in height, were completed, and the openings in the walls for light were filled with sashes of cotton cloth, but the wooden partitions on the first floor were not at the time of the accident erected. The plaintiff called one Harmon, who testified, on cross-examination, that he was a builder and contractor, and supervisor of the erection of buildings, and had been for many years; that it was not usual in erecting buildings to protect, or guard, or • light up holes and openings in the floors, while in the process of construction, nor to light up the passageways in such buildings by artificial light. This was objected to by the plaintiff, but was admitted by the judge. - The defendant called certain builders and contractors, who testified that it was not the custom in erecting buildings to protect, or guard, or light holes and openings in the floors of buildings while in the process of construction, and that the usage was to leave them open and unguarded. The defendant, in offering this testimony, did not state for what purpose it was offered; but the judge admitted it generally, under objection. The judge ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions.