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Evidence that an employee of a window washing company informed a club's manager that an anchor bolt for attaching safety belts was cracked, and that another employee of the company six months later examined the bolt before attaching his belt and observed a coating of corrosion but no crack, was sufficient to warrant findings that the club was negligent in not warning the second employee of a known hidden defect, and that the second employee was not contributorily negligent. [328-329]
We review the evidence in the light most favorable to the plaintiff. Carr v. Arthur D. Little, Inc. 348 Mass. 469, 471 (1965). Stewart v. Roy Bros. Inc. 358 Mass. 446, 448 (1970). Industrial washed the club's windows from 1961 through 1966, always as a subcontractor of Consolidated, and was the \"person responsible\" for cleaning the windows at the time of the accident in 1966. Industrial had five or six window washers on its payroll, and its president hired only experienced washers who were \"union men.\" Industrial furnished its employees with all their window washing tools -- safety belts, pails, sponges, squeegees, and ladders -- and the plaintiff was using a bucket, squeegee, and belt supplied by Industrial on the day of the accident. There were no window washers on the club's payroll from at least 1963 up to the time of the accident, and the club owned no window washer's safety belts. The club had three shifts of its own employees to conduct the operation of the club at the time of the accident, which included two full time maintenance men for \"the usual carpentry, plumbing and electrical work,\" a painter, and maids and housemen. On occasion it was necessary for one of these employees to clean a window when the \"contract window cleaners\" were not there, but the club's manager had never seen one of its employees use a window washer's belt, and none of them participated in the window cleaning operation described in the club's contract with Consolidated. The contract between the club and Consolidated in effect at the time of the accident required that all windows on the first and second floors be washed on a monthly basis and all other windows in the building be washed semi-annually. The plaintiff was engaged in one such semi-annual washing at the time he fell. In the opinion of the club's manager, window washing was a very minor part of the overall operation of the club.
The evidence would have permitted the jury to find the following. The valet room anchor bolt which broke and caused the plaintiff to fall was made of cast bronze and there were defects in its casting; the bolt was corroded, thereby causing a smooth, green coating to form which covered its surface. On the date of the accident, the plaintiff inspected the bolt before and after he hooked his safety belt onto it and saw the green coating but no cracks. Six months prior to the plaintiff's accident, John Duffy, another window washer employed by Industrial, had examined the anchor bolt in question and had seen a crack in the neck of the bolt. He had informed the club's manager that the bolt was rotted and cracked, asked him if he would check the bolts in the valet room and told him the bolts should be replaced by steel hooks. Duffy did not tell the plaintiff about his discovery. The club's manager had no recollection that he or anyone on his behalf had specifically inspected the bolts. During his tenure (since 1963) the club had no inspection or maintenance program which required the anchor bolts to be checked or inspected.
evidence summarized above, the jury could have found that the anchor bolt broke because of defective casting and that such defective casting and the signs indicating its existence were hidden and not obvious. They also could have found that the club, through its manager, was aware of the defect, and finally, because there was no evidence to indicate the contrary, they could have inferred that the plaintiff was not warned about the condition. There was sufficient evidence to warrant the jury in finding the club negligent.
We do not agree with the club that because Duffy testified to having seen a crack in the anchor bolt six months before the plaintiff's accident, the plaintiff is barred from recovery. The plaintiff testified that Duffy had not told him about the defective bolt, and in any event, he is not bound by Duffy's testimony as it did not relate to the extent of his own knowledge. Cf. Hannon v. Hayes-Bickford Lunch Sys. Inc., supra, at 273; Findlay v. Rubin Glass & Mirror Co. 350 Mass. 169, 171-172 (1966). [Note 5]
The club argues that because the witness used the words \"could,\" \"might well,\" and \"may well\" in his answer, the net result was that \"the answer as a whole . . . was merely guess or conjecture on . . . [his] part.\" This argument is without merit because it totally ignores the two questions quoted above which were put to the witness by the judge and the plaintiff's counsel and his answers thereto.
The club attempted to introduce in evidence four sections of the regulations. The first was merely a general statement that \"[n]o employer, owner, agent, manager or tenant\" shall permit window cleaning to be done except in accordance with the regulations. The other three related to the installation and design of anchor bolts and had no application to persons or parties not in control of the property. They were therefore irrelevant to the club's actions against Consolidated and Industrial and were properly excluded.
[Note 5] There was testimony by the plaintiff's expert witness which tended to explain how a crack could have been visible on the anchor bolt in October and then could have been covered over and hidden by the following April. We consider later in the opinion exceptions raised by the club with respect to this testimony but as our discussion above indicates, we have concluded that even without it the jury would be permitted to find that the defective condition of the anchor bolt was hidden at the time of the plaintiff's accident in April, 1966.
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