Fitzgerald v. Whidden

De Courcy, J. The plaintiff was in the employ of the defendants, who are building contractors. At the time of the accident they were erecting and remodelling adjoining buildings on Head Place in Boston. No stairs had been constructed between the floors. A ladder extended from the ground through an opening in the floor of the second story, three and one half feet by four feet in size. For the purpose of holding the ladder securely in position two cleats or stays were nailed to the second story floor and extended over the edge of the opening at oblique angles, one on each side of the ladder. These stays were four feet five inches long, four or five inches wide, and about an inch thick. [43] There was evidence on which the jury could find the following additional facts: The ladder had been placed in position some weeks earlier under the direction of the boss stage builder. It was the duty of the foreman, Tiff, to inspect the ladders and stagings and to see that the stage builders did their work properly. Two fellow workmen of the plaintiff had noticed that the cleats or stays projected beyond the uprights of the ladder and were not sawed or bevelled off; and they had so reported to the foreman. While Tiff denied this, he testified that a ladder thus rigged would be dangerous and that in seeming a ladder in the usual way the ends of the cleats were cut or bevelled off, so that they would not protrude beyond the edge of the ladder. The plaintiff, in response to an urgent order of the foreman, was ascending the ladder for the first time and was carrying some iron plates on his right shoulder. These plates were nine or ten inches square and about one inch thick. The bottom edge of the plates rested on his shoulder and the top edge of one of them rested against his head. As he raised his left arm to grasp a rung of the ladder it struck the projecting corner of one of the cleats, and an old nail, which was sticking out of the under side of the cleat where it extended over the opening, tore his arm and caused him to lose his balance and fall to the ground. The nail protruded one quarter of an inch and was “bent down or turned in underneath” and the plaintiff did not notice it until after it had torn his arm. If the jury believed the testimony most favorable to the plaintiff, they could find that the projecting ends of the cleats and the protruding nail constituted a dangerous obstruction in his pathway; that he was ignorant of this danger and that the restrained position of his head, against which the iron plates rested, prevented him from seeing what was above him. It was admittedly the duty of Tiff, the statutory superintendent, to inspect the ladder, which for some weeks had been attached to the structure in lieu of stairs, and to see that it was safe for the workmen to use. And the jury would be warranted in finding that Tiff was negligent in ordering the plaintiff to ascend the ladder with the plates and to “get them up quick,” without ascertaining the risk to which the plaintiff was exposed by the projecting cleat and nail and giving him warning of the danger in his path. Feeney v. [44] York Manuf. Co. 189 Mass. 336. Hourigan v. Boston Elevated Railway, 193 Mass. 495. Snow v. Revere Rubber Co. 211 Mass. 82. Whalen v. New England Telephone & Telegraph Co. 228 Mass. 361, and cases cited. The presence of a protruding nail on the under side of the cleat was not so obvious nor so likely to be anticipated by a workman of the plaintiff’s experience as to relieve the superintendent of this duty. Blake v. John F. Johnston Co. 213 Mass. 143, and Noonan v. Foley, 217 Mass. 566, are not here applicable. As the plaintiff was entitled to go to the jury on the allegations, in the second count, of negligence on the part of a statutory superintendent, it is unnecessary to consider whether there was also evidence of negligence on the other grounds set forth in his declaration. The due care of the plaintiff was for the jury. When injured he was ascending the ladder in the ordinary manner, carrying a number of loose iron plates on his shoulder and unaware of the projecting cleat and nail until his arm came in contact with them. And as matter of law he did not assume the risk of the superintendent’s negligence. Keating v. Hewatt, 212 Mass. 577. McKinnon v. Pitman & Brown Co. 213 Mass. 284. Hargrave v. American Steel & Wire Co. 219 Mass. 6. As the case rightly was submitted to the jury, in accordance with the report judgment is to be entered for the plaintiff in the sum of $2,500, with costs, and it is So ordered.