Galli v. Drapeau

Sheldon, J. The plaintiff’s injury arose from his stepping into a hole in the roof of a building upon which he was employed to [146] work by a subcontractor. The building was in process of construction, and the hole itself did not while open constitute a hidden danger for which the defendant could have been held responsible. But there was evidence that the temporary purpose for which the hole had been made had been fully accomplished, and the defendant, who was in charge of the whole work of erection, himself testified that it had become his duty to board it up. His foreman testified to the same effect. Both the defendant and his foreman afterwards gave an explanation of this testimony, which went far to neutralize its effect. But this of course merely raised a question for the jury, who could accept the admission as first made and reject the explanation if they thought it right to do so. There was also evidence that after the defendant had had ample time to board up the hole, the roofers who were at work there under another contract with the defendant had covered it over with roofing paper, so that it presented the same appearance as other parts of the roof around it and really constituted a trap to one who did not know, as it could be found that the plaintiff did not know, of the continued existence of the hole under the fragile covering of paper. This warranted a finding of negligence on the part of the defendant. There was evidence that the plaintiff was in the exercise of due care. He was assisting to carry a stone over the roof, as it could be found, in a proper manner, without actual knowledge that the hole was there, and without the means of discovering it if (as we must now. take the fact to be) it was covered over in the manner stated. Upon the testimony on which he relied, it well might be found that there was no fault or neglect on his part. It follows that the judge acted rightly in refusing to make either of the first four rulings asked for by the defendant. Nor could the other requests have been given. They omitted the important consideration that the jury could find from the defendant’s own admission that he had assumed the duty of boarding up this hole, and might have boarded it up before the happening of the accident. If the negligence of some independent contractor or subcontractor co-operated with that of the defendant in causing the plaintiff’s injury, this would not relieve the defendant from liability for the direct consequences of his own breach of duty. [147] The circumstances presented here differ materially from those which appeared in such cases as Gainey v. Peabody, 213 Mass. 229, Beique v. Hosmer, 169 Mass. 541, Murphy v. Altman, 28 App. Div. (N. Y.) 472, and Hogan v. Arbuckle, 73 App. Div. (N. Y.) 591, relied on by the defendant. Exceptions overruled.