Frederick v. Noyes-Roach Construction Co.

VALLÉE, J. Appeal by plaintiff from an order granting defendant’s motion for a new trial.

The action is to recover damages for personal injuries sustained when plaintiff fell into a hole dug by defendant.

Plaintiff was employed as a machinist’s helper by Barbara Ann Bakery Company, called Barbara Ann. He had worked for Barbara Ann about a year, and worked at night. Plaintiff’s duties consisted of cleaning and maintaining machines used to wrap bread and sweet goods. Defendant was engaged in alteration and construction work for Barbara Ann at its plant. Plaintiff knew the construction work was in progress. At the plant there was a yard area with various buildings surrounding it, including the machine shop. In doing its work defendant dug four holes in the yard through the asphalt adjacent to the machine shop for footings for the extension of the wall of the machine shop and had left mounds oE earth throughout the yard. The hole into which plaintiff fell was 2 feet wide by 2 feet long and 3 feet deep. There were no covers over the holes and no barricades or warnings of the existence of the holes.

The accident occurred on Monday morning, August 26, 1957, between 4 and 5 a. m. It was dark. Plaintiff began work [123]at 3 a. m. He knew at that time the yard was filled with dirt. The yard area was bounded on one side by Pasadena Avenue. After performing work in the bakery department, plaintiff crossed Pasadena Avenue to go to the sweet goods building. He went through a gate that led to the yard area which was bounded on the Pasadena Avenue side by a chain link fence. He walked close to the fence to the loading dock in front of the sweet goods building. He cleaned a machine in that building. He then proceeded cater-eornered across the yard to the machine shop. He saw mounds of earth in the yard. He was in the machine shop a few minutes. When he left he walked against the brick wall of the machine shop, hugging it and looking down. When he had gone about 25 feet, he stepped into the hole. The hole was right against the wall. As he walked along he could see the ground and the mounds of earth near where he fell, but he did not see the hole.

There were street lights on Pasadena Avenue along which the yard bordered and lights were on in the basement of the bakery. Stiepani, a fellow workman, had gone to work at 11 p. m. Sunday evening. Shortly after 11 o’clock he left the machine shop to go to the sweet goods building. On the way he fell into one of the holes. Stiepani testified that when plaintiff came to work at 3 a. m. he had a conversation with him about his (Stiepani’s) having fallen. “I said to him that I fall in a hole and he should be careful, maybe he don’t fall. I believe I said, so he don’t fall in the same hole where I fell. Q. You said, ‘Be careful about falling in the same hole that you had fallen in’? A. I said, ‘Be careful when you go this way. I fall in a hole, so maybe prevent it for yourself,’ you know.” Stiepani testified further: “Q. Before you fell in the hole, did you know there were any holes in that yard? A. I don't know. I should expect some, but I didn’t think about it. Q. Well, you didn’t actually see any holes in the yard before you had your accident? A. Well, they made some before. They start to lay off the ground, the marks where they make the holes, because it was cement, but I didn’t see them during the night because some of them, they have sand over and some of them not. I didn’t think about it. I just thought about it after I fell in the hole.”