Home BRYANT E. PALMER vs. NANCY A. PALMER (NOW GERMAIN).

357 Mass. 764

March 3, 1970

A mother appeals from a decree of the Norfolk County Probate Court dismissing her general petition for modification of the decree which granted custody of her two minor children to their father, her former husband, to be exercised in the home of the paternal grandparents where their father resides. The judge filed a report of material facts finding ultimately "that it was for the best interests of the two children that they stay with their father at the home of their grandmother and grandfather." He incorporated as part of his report the findings and conclusions of a guardian ad litem who had recommended that the custody arrangements of the two children not be disturbed "until there is such a change in conditions that would require another review of the entire matter." The evidence which was reported is conflicting. We have reviewed the transcript and the report not only of the guardian ad litem to whom reference has been made but also that of a guardian previously appointed. General Laws c. 208, Section 28, provides that a Probate Court may revise and alter a decree for custody "as the circumstances of the parents and the benefit of the children may require." A change in custody will not ordinarily be ordered in the absence of a change in circumstances since the original decree for custody. Hinds v. Hinds, 329 Mass. 190 , 191. Whether such a change shall be ordered is a matter "peculiarly within the province of the judge, who observed the witnesses, among whom were both parents." Grandell v. Short, 317 Mass. 605 , 608. The judge's decision will not be reversed unless erroneous and not supported by the evidence. Jenkins v. Jenkins, 304 Mass. 248 , 252.

Decree dismissing petition affirmed.

Home ORVAL HAAK vs. J. F. MCGLAME, Jr., & another, trustees.

357 Mass. 764

March 3, 1970

The plaintiff excepted to the allowance of the defendants' motion for a directed verdict in this action of tort brought by him to recover for injuries he sustained in a fall from a ladder due to the alleged negligence of the defendants, their agents or servants. The plaintiff, an elevator repairman for eighteen years, went to a building owned by the defendants to service the elevator and proceeded to the top floor of the building. In order to reach the overhead of the elevator he entered a utility room where he "saw a wooden ladder on a

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2 x 4 header" at the top of a partition which was approximately seven or eight feet from the floor upon which he was standing. This ladder had been placed in position by the building superintendent who had employed it from time to time. The plaintiff reached the ladder by piling three five gallon cans together enabling him to pull himself onto the header. While doing so he noticed "that the right hand side of the ladder had one nail toenailed into the right leg" but he did not see the left leg of the ladder. He ascended the ladder without incident but while later attempting to descend it and while carrying a seven pound governor, a part of the elevator machinery, the ladder "immediately turned or twisted from left to right," pivoting on the right leg. The plaintiff lost his balance and fell a distance of seventeen feet causing his personal injuries. There was no error. The plaintiff was an experienced elevator repairman, and as the servant of an independent contractor making repairs on the premises of the owners took them as he found them. Slight inspection would have indicated to the plaintiff exactly how the ladder was secured. Any defect was not hidden or concealed in these circumstances. The defendants committed no breach of any duty owed by them to the plaintiff. Favereau v. Gabele, 262 Mass. 118 , 119. Williams v. United Men's Shop, Inc. 317 Mass. 319 , 320.

Exceptions overruled.