PROULX v. J.W. BISHOP CO

Negligence, Employer's liability, In tearing down building. A common laborer employed by a contractor to assist in tearing down a building, when he is obeying an order of a superintendent in charge of the work to throw out of a certain window floor boards which have been torn up, and in doing this necessarily passes over a portion of the floor which by direction of the superintendent has been sawn through but still is held in place and has the appearance of being intact, has a right to assume that the floor over which it is necessary for him to pass in obeying the order of the superintendent is reasonably safe, and if the severed portion of the floor gives way as he is passing over it and he falls through and suffers injuries which result in his death, in an action against his employer for causing his death, it is a question of fact for the jury whether the deceased workman's general knowledge of the character of the operations going on about him in the tearing down of the building should have led him to anticipate that the superintendent would direct him to perform work requiring him to pass over a severed portion of the floor, which had been put in this unsafe condition by the superintendent's direction, without giving him some warning of the danger to which he must be exposed.

It is evidence of negligence on the part of the superintendent of a contractor in charge of the work of tearing down a building toward a common laborer employed in the work, that such superintendent, after having caused a portion of the floor of the building to be sawn through, so that to walk over it would be dangerous especially if carrying a load, ordered the laborer to remove some loose boards and throw them out of a certain window, knowing that the laborer in obeying his command would be obliged to pass over the weakened portion of the floor, and that he gave the laborer no warning of the danger, which was not obvious from the appearance of the surface of the floor.

BRALEY, J.

The defendant concedes that, irrespective of any question of pleading, the plaintiff is entitled to judgment on the verdict, if there was any evidence of its liability which warranted the submission of the case to the jury. It was undisputed, that the plaintiff's intestate was a common laborer, and there is nothing in the evidence from which an inference as matter of law could have been drawn, that from experience or observation he was sufficiently acquainted with the indications shown by the saw scarf in the planking, with the accompanying sawdust, to realize that the floor had been sawn asunder. Reardon v. Byrne, 195 Mass. 146. Young v. Snell, 200 Mass. 242. Besides, there was evidence that during the work of demolition the planking became littered with accumulated dust from the mortar and bricks which obscured the cutting made by the saw.

If the nature of the work in which with his fellow workmen he was engaged involved an acceptance of the obvious risks attendant upon the tearing down of the building, he undoubtedly had the right to assume, when the foreman entrusted with superintendence ordered him to stop cleaning bricks and to remove the detached floor boards, that the floor over which the jury could find he must pass while obeying the order was reasonably safe. Feeney v. York Manuf. Co. 189 Mass. 336, 340. Young v. Snell, 200 Mass. 242.

The defendant, relying on McCann v. Kennedy, 167 Mass. 23, urges that the risk, if not found to have been obvious, was merely momentary, and that it would be putting too onerous a burden on employers to require them to warn their employees of such transitory dangers. But the plaintiff in that case knew generally of the peril to which he might be exposed if he stepped upon the joist, although he did not know of the precise time when the danger might arise. The risk, therefore, was obvious, even if injury therefrom might be postponed, or never occur. The case of Boisvert v. Ward, 199 Mass. 594, where the plaintiff, an experienced carpenter, while doing the work in his own way was injured by the fall of a rotten rafter from the roof of a building which was being demolished, is accordingly not decisive of the case at bar. And for similar reasons, the cases of Beique v. Hosmer, 169 Mass. 541, and Johnson v. H.P. Cummings Construction Co. 201 Mass. 477, are plainly distinguishable.

If the deceased knew generally of the character of the operations going on about him, he might properly place some reliance on the oversight of the superintendent. It was a question of fact whether this knowledge should have led him to anticipate that the superintendent deliberately would direct him to perform work which would require passing over a severed floor, the unsafe condition of which had been created by the superintendent's direction, without giving him some warning of the danger to which he must be exposed. Reardon v. Byrne, 195 Mass. 146, 149, and cases cited.

But if the questions of the plaintiff's due care and assumption of risk were rightly submitted to the jury, the defendant contends there was no evidence of the negligence of the superintendent. The cutting of the planking on the southerly side of the floor, as we have said, was done under his supervision. It does not seem to have been controverted, that after the floor was sawn through it became so weakened that to walk over it, especially if the workman carried a load, would be dangerous. The superintendent, however, ordered the removal of the loose boards lying on the southwesterly side, when he must have known that in obedience to the command the decedent would be required to pass diagonally over the floor as the only feasible way to reach the boards which were to be carried to the northeasterly side and thrown through an open window to the ground. It also appears that he was present after the decedent and other workmen had begun the removal, but gave them no warning of the danger. If these conditions were found to exist, there was evidence for the jury of the negligence of the superintendent, for which the defendant would be liable. Feeney v. York Manuf. Co. 189 Mass. 336. Brosnan v. New York, New Haven, Hartford Railroad, 200 Mass. 221. The defendant's request for a ruling, that upon all the evidence the plaintiff was not entitled to recover was properly denied.

By the terms of the report, judgment in favor of the plaintiff is to be entered for the amount of the verdict, to be apportioned according to the stipulation of the parties.

So ordered.