Brown v. Boyd

Per Curiam. The contract between the owners of the property and the planing-mill company provided as follows: “Contractors will furnish all material and do all work as provided in plans and specifications, except where specifically noted to the contrary. . . This contract does not include any gas piping or the installation of any gas fixtures. Contractors will omit garage floor, the housing of treads, risers, and stringers on stair, and the painting of plastered walls.” The foregoing provisions of the contract demand the interpretation that the items excepted from the contract were items called for by the plans and specifications. It would be inferable that some one would be employed by the owners to do the work so excepted. It would have been meaningless and absurd to make exceptions of items not included in the plans and specifications. In these circumstances it was a question for a jury to determine whether one who was to-do part of the excepted work should reasonably have been expected upon the premises by the planing-mill company. Included in this question is the question whether the excepted work could have been done without interference with the work of the planing-mill company while it was engaged in its part of the work. It can not be said, as a matter of law, that the contractor had exclusive possession of the premises and that the deceased was a trespasser. Under the allegations of the petition it is a jury question whether the contract, the exceptions, the nature of the work to be done by the various parties, and the other circumstances created a situation in which the owner had the right to send the deceased upon the premises for the purposes alleged before the contractor completed its work, and whether under the circumstances the contractor was reasonably bound to anticipate that this work would be done. The petition as amended set forth a cause of action against all three defendants. The allegations do not show, as a matter, of law, that the deceased could have avoided the negligence by the use of ordinary care, or that his injury, as a matter of law, was due to his own negligence. Judgment reversed. Stephens, P. J., cmd Felton, J., concur. Sutton, J., dissents.