PHILIP J. HART vs. M. S. KELLIHER COMPANY.

PHILIP J. HART vs. M. S. KELLIHER COMPANY.

308 Mass. 213

January 7, 1941 - January 28, 1941

Worcester County

Present: FIELD, C.J., DONAHUE, LUMMUS, COX, & RONAN, JJ.

Findings were warranted that an applicant for work was an invitee of a building contractor while waiting on a platform on which bags of cement were piled, and that the contractor was negligent in failing to warn him of the danger, of which he was ignorant but of which the contractor knew or should have known, that the bags might fall on him because of improper piling.

TORT. Writ in the Superior Court dated October 8, 1935.

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The case was tried before T. J. Hammond, J., and a verdict was returned for the plaintiff in the sum of $4,066. In this court the case was submitted on briefs.

J. J. MacCarthy, for the defendant.

J. M. Hart, Nicholas Fusaro & Nunziato Fusaro, for the plaintiff.

RONAN, J. The plaintiff, who had previously been employed as a laborer on an hourly basis by the defendant company, which was engaged in the construction of an addition to a hospital in Worcester, came to the hospital premises on various occasions seeking employment. On his last visit before the accident he was told by the defendant's superintendent that there was no work then but that if he returned the first of the following week the superintendent would put him to work if there was any available work. On Tuesday morning, June 11, 1935, the plaintiff again applied for work. He met the superintendent in front of a wooden platform upon which were piled several hundred bags of cement covered by canvas. The superintendent informed him that he did not know if there was any work and told the plaintiff to "sit down there and wait and that he would check up and let . . . [him] know later." The plaintiff had been sitting on this platform about an hour when he was struck by several bags of cement which fell from the pile. The pile was seven to eight feet high at the ends and possibly twelve feet high in the center. The bags were piled upon their flat sides but they were not "bonded" and the pile leaned somewhat toward the front of the platform where the plaintiff was sitting. Bags were frequently taken and were carried to the mixing machine, which was a short distance away. Several bags were taken from the pile while the plaintiff was sitting upon the platform. There was evidence upon which a jury could find as facts the matters that have been mentioned. The plaintiff had a verdict. The defendant excepted to the refusal to grant its motion for a directed verdict.

The defendant had constructed the platform for the storage of cement, and had also erected near the platform a small, temporary structure which it used as an office. It could be found that a large quantity of cement was required

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for the construction of the addition to the hospital and that in the performance of this work the defendant had taken possession and control of the place where the accident occurred. Garland v. Townsend, 217 Mass. 297 . Mikaelian v. Palaza, 300 Mass. 354 .

The plaintiff, after he had been directed to sit down and wait until the superintendent could determine if there was an opportunity for him to go to work, could be found to have acted reasonably in going to the platform and waiting until he learned the decision of the superintendent. At least it could not be said, as matter of law, that he was not following directions in sitting upon the platform. He could be found to be lawfully there in relation to a matter of business in which both the defendant and himself had an interest, and it could also be found that his presence there was not merely permissive and that his status to the defendant rose higher than if his presence there were only by passive acquiescence of the defendant. There was evidence that he was induced by the remarks of the superintendent to go to the platform and to remain there until he was advised whether he was to be employed by the defendant. The jury were warranted in finding that the plaintiff was upon the platform in accordance with the defendant's invitation and that the defendant was bound to use reasonable care to see that he was not injured while there on account of its unsafe condition. Gardner v. Copley-Plaza Operating Co. 220 Mass. 372 . Statkunas v. L. Promboim & Son Inc. 274 Mass. 515 , 519. Silva v. Henry & Close Co. 279 Mass. 334 . Denny v. Riverbank Court Hotel Co. 282 Mass. 176 . Lanstein v. Acme White Lead & Color Works, 285 Mass. 328 , 329. Fulton v. Edison Electric Illuminating Co. of Boston, 303 Mass. 258 . See Forgione v. Frankini Construction Co., ante, 29, 30.

There was testimony that bags of cement were last added to the pile on the Friday preceding the accident; that the bags were not properly piled; and that the defendant's employees had pulled bags out of the side of the pile as it was difficult to reach the bags on the top. The defendant's superintendent was in the vicinity of the platform on several occasions when the plaintiff was seated there before the

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accident, and the platform on which the cement was piled was located a few feet from the defendant's office. A jury could find that the defendant knew or ought to have known that the pile was insecure and likely to fall, and should have warned the plaintiff of the danger of which, the jury could find, he was ignorant. Mahar v. Steuer, 170 Mass. 454 . Millard v. West End Street Railway, 173 Mass. 512 . Gile v. J. W. Bishop Co. 184 Mass. 413 . Pickwick v. McCauliff, 193 Mass. 70 . Conroy v. G. W. & F. Smith Iron Co. 194 Mass. 468 . Carriere v. Merrick Lumber Co. 203 Mass. 322 , 325. Meehan v. Gordon, 307 Mass. 59 .