Falardeau v. Hoar

Knowlton, C. J. The plaintiff, while temporarily employed in a building held and managed by the defendants as lessees, fell through a trap door in the floor of one of the corridors, and was injured. This trap door was set in an opening in the floor, and could be lifted out of the opening by a ring. There was much contradiction between the defendants’ witnesses and the plaintiff in regard to some of the material facts in the case; but as the jury presumably believed the plaintiff, we must consider the exceptions in the aspect of the testimony which is most favorable to him. He testified that he had often passed through this corridor but never had noticed the trap door. We cannot say as matter of law that his failure to notice it shows a lack of due care. Johnson v. Field-Thurber Co. 171 Mass. 481. According to his account of the accident, he was passing through the corridor in the performance of his duty, walking in the usual way, when he met King, an assistant of the janitor, and went on a little further, after which he remembered nothing more until he found himself in the hospital. The evidence showed that King had taken out the trap door to put some ash cans into the cellar, leaving an opening in the floor four feet square, through which the plaintiff fell. There was nothing there but the opening to indicate that the floor was not in its usual safe condition. There was testimony from a medical expert that a person receiving a severe blow on the head as the plaintiff did, ordinarily loses the recollection of everything occurring immediately before the blow. We are of opinion that it was a question for the jury whether the plaintiff, walking there in an ordinary way in the performance of his duty, was in the exercise of due care, even though he failed to notice an opening in the floor in a corridor where he had always found the floor in perfect condition, and where he had reason to believe that it was absolutely safe. Thyng v. Fitchburg Railroad, 156 Mass. 13. Maguire v. Fitchburg Railroad, 146 Mass. 379. If, in looking forward, the corridor seemed in its usual condition, we cannot say as matter [267] of law that he was bound so to scrutinize the floor as to be sure that there was no opening in it. The danger that one might step into such an opening without noticing it was recognized by the janitor, who testified as follows: “ I had always put a step ladder or settee there as a protection when I opened the trap door. I did not give King any instructions to do this on the morning of the accident, and I did not look to see whether it had been done, because he had always put something there, and of course I supposed he knew enough to do it that time.” The defendants contend that there was no evidence of negligence on their part. It was their duty, in a general way, to have the building in a safe condition for those who were working in it. An opening in the floor of a corridor rendered it unsafe for those who had occasion to pass through the corridor without knowledge of the opening. Such an opening was in the nature of a trap for those who were ignorant of it, and it was the duty of the defendants to give warning of it. This opening would be made only at intervals by the defendants’ servants for the performance of particular duties. If the defendants provided proper barriers or other means of protection for those walking there, which were to be used by their servants whenever the door was lifted up, the use of these barriers might be entrusted to servants in connection with their work which involved the opening of “the trap door. Moynihan v. Hills Co. 146 Mass. 586. At the time of this accident no barriers were used and no warning was given. From these facts, unexplained, the jury might infer negligence on the part of the defendants. Griffin v. Boston Albany Railroad, 148 Mass. 143. Savage v. Marlborough, Street Railway, 186 Mass. 203. Feital v. Middlesex Railroad, 109 Mass. 398. By way of explanation the defendants offered evidence that when the door was opened it was the custom to barricade the opening by putting across it “ a ladder or settee or anything that would go across there,” and that such articles were kept in a room near by. The judge left to the jury the question whether the defendants had made provision for a barricade, by an instruction in these words: “ Now this is a question for you. If there were barriers provided, and if from the custom there of using those barriers the defendants in the line of their supervision [268] knew that those were being used for barriers, and that Wildes [the janitor] and King were using them as barriers, why, then they had done all that the law required of them, and the act would become the negligent act of a fellow workman, namely King, in the failure to use those things which were provided as barriers and which the defendants in the line of their supervision knew were being used for that purpose.” This instruction was correct. The defendants requested a similar instruction, which omitted in its hypothetical statement the element of intention on the part of the owners or persons in control of the building that the articles which were suitable for making a barricade should be used for that purpose, and the element of knowledge that they were so used, and they excepted to the refusal to give the instruction, and to the instruction given so far as it included knowledge on the part of the owners as a requisite. This exception must be overruled. If the defendants had made no provision for a barricade or warning, and had no knowledge that ladders or settees were used as barriers, and these things were sometimes so used without their knowledge, ■they would not be relieved from liability for an accident at a time when they were not used, and when they had made no provision for erecting a barrier or giving a warning. The jury must have found that the defendants made no proper provision for giving warning. Some evidence that the testimony of Wildes and King should not be given the effect imputed to it by the defendants is found in the fact that the defendants, while seemingly stating in their answers to interrogatories the facts relied upon by them as a defence, did not refer to any provision of this kind. Exceptions overruled.