FRED A. FOLLANSBEE vs. GEORGE A. OHSE.

CROSBY, J. This is an action of tort in which the plaintiff seeks to recover for personal injuries sustained by him while using a staging in painting the defendant's house, and alleged to have been caused by negligence of the defendant.

The plaintiff testified as follows: He had been a painter for nearly fifty years. He made an agreement with the defendant to paint his house for $130. It was a two and a half story wooden house with a pitched roof; the gutters were about twenty-six or twenty-eight feet above the ground and in bad condition. The plaintiff inspected the gutters: he first looked at the left side of the house and could see from the ground that the gutter at the roof was leaking and unsafe for him to use in swinging his staging from. On the same day he notified the defendant that the gutters of the house needed repairing and that he could not go on with the work until they had been fixed; the defendant replied that he would employ a carpenter and have the gutters repaired. The plaintiff and his workman, one Cummings, commenced painting the front of the house on which there were no gutters; after finishing that part they painted the back of the house. While the plaintiff was working there on a piazza, the defendant called up to him and said, "The gutters are all right now, go ahead." Before this time he had seen the defendant's carpenter working on the premises; after this conversation, he painted the left side of the house, using the gutter, which was new, to place his hooks in from which to swing the staging. After finishing the left side, he and his employee worked on the right side, first testing the gutter and finding it apparently safe. There was a bay window on the right side about two thirds back from the front of the house; the distance from the bay window to the back of the house was about fifteen or eighteen feet. When the plaintiff and his employee came to paint the portion of the right side in the rear of the bay window, they took the staging and an extension ladder there. A gutter hook is made of iron or steel, and there is a block attached to the lower end into which the falls go; at the tip of the hook there is a cross piece, about eight or ten inches in length, which rests in the gutter when the hook is in use. Cummings went up the

Page 50

extension ladder carrying a gutter hook, which he inserted into the gutter; then the plaintiff put a board between the ends of the falls and jumped up and down on it for the purpose of testing the gutter to determine whether it was strong enough to support the staging. Cummings remained on the ladder near where the hook had been placed to observe the gutter when the board was jumped upon, and reported that the gutter seemed all right. He put another hook in the gutter and made the same test, and told the plaintiff that the gutter appeared to be all right. Cummings was an experienced painter. The plaintiff and Cummings went upon the staging and commenced painting. Cummings took a step or two for the purpose of speaking to him and then, without warning, the right hand side of the staging fell down and the plaintiff fell to the ground and was seriously injured. The plaintiff did not use a tie line on this job; he testified that there was nothing on the roof that he knew of to which a tie line could be secured. He did not say that everything was all right before the carpenter left the job; he did not see the gutter on the right side of the building until he went to that side for the purpose of painting it; so far as he could tell from looking at it from the ground, it was all right; he relied on what the defendant told him about the gutters being all right, and on the test he and Cummings made by jumping on the falls and inspecting the gutter.

The plaintiff's employee Cummings testified that while he and the plaintiff were working on the rear of the house he saw the defendant come to a point below the piazza where they were working and heard the defendant say to the plaintiff: "The gutters are all right now, go ahead"; that after finishing the rear of the house he and the plaintiff painted the left hand side of it, swinging the staging on hooks inserted in the gutter; that the gutter was new; that after painting that side of the house they commenced the right side; that he put the hooks in the gutter and watched it while the plaintiff jumped on the falls; that the gutter seemed all right; that after he had been working on that side about half an hour the gutter above the plaintiff gave way and the right end of the staging fell to the ground taking the

Page 51

plaintiff with it; that the piece of the gutter which fell was six or eight feet long; that the wood in the trough was cracked and blackened; that the wood inside was rotten; that the nails had broken off and had not pulled out; that the nails were badly rusted and the nail holes were enlarged; that he thought it was right for them to swing the staging from the gutter. There was other evidence presented by the plaintiff tending to show that the gutter on the right hand side of the house was in a decayed condition; that the piece that fell to the ground was painted and looked all right when in place, but that the inside of it was very rotten.

It could have been found by the jury from the testimony of the plaintiff that when he went to the defendant's house for the purpose of painting it he inspected the gutters, and found they were in bad condition, and that on the same day he notified the defendant that he could not go on with the work until they were repaired; that the defendant replied that he would employ a carpenter, and have the gutters repaired. Thereafter the defendant employed a carpenter who repaired one of the gutters, but did not make any repairs upon the gutter on the right side of the house. Later, and while the plaintiff was painting at the back of the house, the defendant said to him, "The gutters are all right now, go ahead." Before this time the plaintiff had seen the defendant's carpenter working on the premises. After the plaintiff and his employee had finished painting the left side of the house, they tested the gutter on the right side, and finding it apparently safe they suspended the staging from it. Soon after the plaintiff and his assistant began painting on this side the staging fell, owing to the decayed condition of the gutter, and the plaintiff was seriously injured.

The plaintiff was the contractor; he used a "swinging staging." It belonged to him, and was put up by him, and the defendant had nothing to do with it and no responsibility for it. With respect to a "swinging staging" there are printed regulations adopted and in force under G. L. (Ter. Ed.) c. 149, §§ 6, 7. The important provision is in these words: "Supporting devices shall be secured to some stable

Page 52

part of the building or structure. When they are attached to or supported by the gutters, they shall be secured independently by a tie-line." That is imperative and unequivocal. It makes no exceptions. It is plainly authorized by the statute. It is provided by § 13 of said c. 149 that "No person shall violate any reasonable rule, regulation, order or requirement made by the department under section six . . . ." It is provided by § 180 of the same chapter that "Whoever violates a provision of this chapter for which no specific penalty is provided shall be punished by a fine of not more than one hundred dollars." It seems plain on the evidence that the plaintiff was violating this regulation and thus committing a crime.

The general rule is that "A violation of a statute, ordinance or regulation, although not conclusive, is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent." Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 516. Milbury v. Turner Centre System, 274 Mass. 358, 361. Dzura v. Phillips, 275 Mass. 283, 290.

It was said in Jones v. New York, New Haven & Hartford Railroad, 275 Mass. 139, at page 143: "In an ordinary action of tort at common law to recover compensation for personal injuries, violation of a penal statute by the plaintiff at the moment of injury is a factor to be regarded. Its relation to the rights of the plaintiff was exhaustively considered, with a full review of pertinent authorities, in Bourne v. Whitman, 209 Mass. 155, by the court speaking through Chief Justice Knowlton, at page 167: 'It has been established from early times that one who is violating a criminal law cannot recover for an injury to which his criminality was a directly contributing cause.' The rule there stated with amplifications is in substance that a plaintiff engaged in a criminal act at the time of sustaining injury through the negligence' of another is not thereby necessarily precluded from recovery. He is precluded from recovery provided the element of criminality involved in that act and intended to be punished by the law has direct contributory effect in bringing on his injury. He may recover (if the other essentials of

Page 53

liability are established) provided the element of criminality involved in that act and intended to be punished by the law did not have a direct contributory effect in bringing on his injury. The law on its civil side will not aid a violator of the criminal law in seeking relief from the consequences of his own transgression."

It is plain that the plaintiff did not use a tie line, although he was required to use one by the regulation. His testimony on the point was this: "that he never at any time in his painting business used a tie line when swinging on staging-secured by gutter hooks inserted in gutters; that he did not know there was any law or regulation in force at that time which required him to use a tie line; that he had never registered at the State House as a boss painter and did not then know anything about registration; that he did not use a tie line on this job; that there was nothing on the roof which he knew of to which a tie line could be secured." This conduct was a violation of the regulation. The fact that the plaintiff testified that there was "nothing on the roof which he knew of to which a tie line could be secured" is immaterial. It could have been secured in some other way than to something "on the roof." The regulation does not require that it be secured to something on the roof. The tie line could have been thrown over the roof and secured to something on the other side. In any event, the regulation is imperative. The failure of the plaintiff to use a tie line was a cause directly contributing to his injury. The staging belonged to the plaintiff. He was the contractor. It was his duty to see that the staging was "secured independently by a tie-line." Therefore, his violation of a criminal law directly contributed to his injury, and under Bourne v. Whitman, 209 Mass. 155, and the numerous cases following it, he is precluded from recovery. Patrican v. Garvey, 287 Mass. 62. Klegerman v. New York, New Haven & Hartford Railroad, 290 Mass. 268, 275. The testimony of the inspector, to the effect that many painters used tie lines and some did not use them, is of no avail to the plaintiff. He is bound by the regulation in any event, especially when he seeks to make the defendant responsible for personal injuries resulting

Page 54

from such violation of law. The trial judge properly allowed the defendant's motion that a verdict be entered in his favor.

In accordance with the terms of the report, judgment is to be entered for the defendant.

So ordered.