Beique v. Hosmer

| Mass. | Nov 24, 1897

Morton, J.

The hole through which the plaintiff fell was not cut by the defendant, or by his direction, or that of any one in bis employ. It was cut by one Prew, under authority from one Dodge, the general contractor, for purposes connected with Prew’s work, and. not with that of the defendant. If therefore there was any negligence on the part of the defendant or of his superintendent, it was not in causing the hole to be cut. It appears, however, that the defendant and his superintendent knew for several weeks before the accident that the hole was there, and it is said that they should have covered or guarded it, or have'warned the plaintiff of it.

The plaintiff was an experienced workman. The building on which he was working was in the process of construction. Obviously, the condition of such a building is not a permanent one, but is liable to change as the necessities of construction require. An experienced workman must be assumed to know this, and to have regard to it. It is one of the risks of the business in which he is engaged. To require his employer to warn him or to guard him against such a risk would be, therefore, to compel the employer to protect him from a risk concerning which, from the very nature of the case, the employer would have no reason to suppose that the workman needed any warning or protection. Kanz v. Page, 168 Mass. 217" court="Mass." date_filed="1897-03-30" href="https://app.midpage.ai/document/kanz-v-page-6425942?utm_source=webapp" opinion_id="6425942">168 Mass. 217. McCann v. Kennedy, 167 Mass. 23" court="Mass." date_filed="1896-10-22" href="https://app.midpage.ai/document/mccann-v-kennedy-6425724?utm_source=webapp" opinion_id="6425724">167 Mass. 23. Hogarth v. Pocasset Manuf. Co. 167 Mass. 254" court="Mass." date_filed="1897-01-06" href="https://app.midpage.ai/document/lemery-v-boston--maine-railroad-6425788?utm_source=webapp" opinion_id="6425788">167 Mass. 254. Though the hole had been there several weeks, there is nothing to show that the defendant had any reason to suppose that the plaintiff needed any warning or protection in regard to it.

We think that the building was not “ ways, works, or machinery connected with or used in the business ” of the defendant, and that therefore the hole did not constitute a defect in the ways, works, or machinery of the defendant. Lynch v. Allyn, 160 Mass. 248" court="Mass." date_filed="1893-12-01" href="https://app.midpage.ai/document/lynch-v-allyn-6424764?utm_source=webapp" opinion_id="6424764">160 Mass. 248. When completed, the building would no doubt constitute a part of the ways, works, or machinery of the Lyman Mills, for which it was being erected, but while in the process of erection it could not be said, we think, to be a part of the ways, works, or machinery of a subcontractor who was helping to build it.

Exceptions overruled.