Caldwell v. Slade

Lathrop, J. The hole in the floor through which the plaintiff fell was used for the passing of boards and other material from that floor to another. Although no cover had ever been made for the hole, and no scuttle constructed to cover it, it was usually covered by pieces of plank. The accident does not appear to have been caused by any insufficiency in the cover, but was owing to the fact that the hole was not at that time covered 86 at all. The case does not, therefore, come within the doctrine of Dalay v. Savage, 145 Mass. 38. The hole cannot be said to be a nuisance in and of itself. It was obviously necessary for the business of the occupier; and the fault, if any, was that -of the tenant, in not having it guarded or covered, or in not giving warning at the time the plaintiff was using the building. Mellen v. Morrill, 126 Mass. 545. Clifford v. Atlantic Mills, 146 Mass. 47, 49. The plaintiff further contends that a duty was imposed on the defendants by the St. of 1888, c. 367, §§ 3, 4. These sections amend §§ 108 and 109 respectively of the St. of 1885, c. 374, and they relate to shafts or hoistways for freight or passenger elevators, and have no application to the case before us. Exceptions overruled.