Gainey v. Peabody
213 Mass. 229
Mass.
1913
Check Treatment
Rugg, C. J.

The plaintiff was a mason’s tender in the employ of the defendants, of many years’ experience. He was engaged to work upon a building in process of construction. By the record as amended it is apparent that it is not now open to the plaintiff to argue that the building was an iron or steel framed building. Hence the provisions of R. L. c. 104, § 44, do not apply. The law applicable to the relation of the parties under these circumstances is as stated by Knowlton, J., in Murphy v. Greeley, 146 Mass. 196, at 200: “The defendant was under no obligation to provide against the ordinary risks incident to the performance of the contract which” the plaintiff “entered into, nor against any special risks incident to the peculiar manner in which he might perform it.” The plaintiff seeks to distinguish the case at bar from this principle by reason of its facts. These are in substance that he had been at work upon the building three days, and was injured by stepping off a plank which spanned an opening on the first floor, as he was leaving the building in company with other laborers. The opening had been made by the defendants, and had been used for hoisting materials, but not for a month before the accident. The place was somewhat dark, partly by reason of its location in the building, but chiefly by reason of the piling of terra cotta close to the hole, so that it was not possible to go around it. The amount and location of the terra cotta changed from day to day, as it was used in the construction of the building, and fresh supplies were brought in. There was evidence tending to show that the place was darker, by reason of more terra cotta about the hole, than it was at the time of the employment of the plaintiff. The mere existence of a hole in the floor of a building in process of construction is in itself no evidence of negligence. It is one of the conditions which, apart from statutory obligation to guard, must be anticipated by anybody working there. Beique v. Hosmer, 169 Mass. 541. Morris v. Walworth Manuf. Co. 181 Mass. 326. Eisner v. Horton, 200 Mass. *232507. Johnson v. H. P. Cummings Construction Co. 201 Mass. 477. Moreover, the hole was the same in size and position as when the plaintiff entered upon his contract of employment. It was open and obvious, and the risk from it must be held to have been assumed. McCafferty v. Lewando’s French Dyeing & Cleansing Co. 194 Mass. 412. Crimmins v. Booth, 202 Mass. 17. Butler v. Frazee, 211 U. S. 459. The piling of the terra cotta, constantly varying in amount and position with the progress of the construction of the building, was a transitory risk, as to which no duty rested upon the defendants. Hence the circumstance that, the place was darker than when the plaintiff entered the employment, by reason of piling the terra cotta nearer to the hole or higher about it, is immaterial. This danger was transitory. McCann v. Kennedy, 167 Mass. 23. Kanz v. Page, 168 Mass. 217. Murdock v. Paine Furniture Co. 211 Mass. 97. Flynn v. Campbell, 160 Mass. 128. Whittaker v. Bent, 167 Mass. 588.

The case is close to the line, but a majority of the court are of opinion that the record does not disclose any breach of any duty owed by the defendants to the plaintiff. In accordance with the terms of the report, judgment is to be entered for the defendants.

So ordered.