Wright v. Sears

242 Mass. 292 | Mass. | 1922

Braley, J.

The plaintiff was shovelling gravel from the bottom of a gravel pit, when the bank on the side about five or six feet distant from where he was at work began to drop or “cave in” from the top. A falling sod struck him on the leg, knocked him down, and he was partially buried, suffering injuries for which he seeks damages. The defendant owned the pit from which for many years he had sold gravel to various parties who loaded and removed it, and on the day of the accident the plaintiff and the defendant were employees of the town of Barnstable, which had bought and was carting gravel away, but for what purpose or use the record does not show. And when the bank, consisting of “loose sand and gravel and loam on top” fell in, the defendant as well as the plaintiff, and the town’s foreman was loading gravel. The plaintiff however being an employee of the town, the defendant owed him no duty to provide a safe place in which he could perform his work, or to warn him of risks which might arise out of his employment. If he is to prevail, the plaintiff must show that his injuries were attributable to the failure of the defendant as owner of the premises to perform some duty which he owed to him. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368. It is contended that because he owned land which “he used as a place of business,” the defendant was bound to maintain the pit at all times in a reasonably safe condition for the use of those who bought and removed gravel. The plaintiff undoubtedly was rightfully there. But, even if the defendant could not escape liability for concealed and dangerous defects of which he had knowledge or ought to have discovered in the exercise of reasonable diligence, Hall v. Henry Thayer & Co. 225 Mass. 151, it does not appear that when the town began operations the premises were unsafe or that the general condition of the pit was not plainly visible. The right of occupancy and control while the work was in progress had been transferred to the town for whose management the defendant is not responsible. Coman v. Alles, 198 Mass. 99, 103. We are accordingly of opinion, that there was no evidence which would have warranted the jury in finding, that the defendant was guilty of any act of negligence from which the plaintiff’s injury might reasonably have been anticipated or from which it resulted. By the terms of the report judgment is to be entered for the defendant on the verdict.

So ordered.