Manchester v. Scarderzio , 5 R.I. Dec. 135 ( 1929 )

BLODGETT, P. J.

Heard upon demurrer to second count of declaration.

Action of negligence for death of plaintiff’s intestate while at work painting a smoke stack on property of defendant.

The count sets forth a duty on the part of defendant to warn intestate of any dangerous condition of such stack known to defendant, or which might have been known by the exercise of reasonable care.

One Brown, the original contractor for painting the stack, assigned to plaintiff’s intestate the contract and said assignee entered upon the performance of the same. While so doing he was killed by the falling of said stack. The question is: Was there any duty on .the part of defendant to warn an independent contractor of a dangerous condition of such stack?

The Court is of the opinion that no such duty is imposed upon the defendant in the premises. The contractor is employed by reason of his skill and experience.

There is no allegation in said second count that defendant accepted or had knowledge of an assignment by original contractor. Without any allegation of knowledge of acceptance by said defendant of suck assignment, there could be no privity of contract between the parties.

For plaintiff: James J. Corrigan. For defendant: John M. Clifford.

Demurrer sustained.