This is an action of tort to recover for personal injuries alleged to have been caused by the negligence of the defendant. In the Superior Court a verdict was ordered for the defendant at the close of the plaintiff’s evidence, upon the sole ground that at the time of the accident as a matter of law he was not in the exercise of due care. Under his exceptions the correctness of this ruling is the only question open, and in its determination the evidence reported must be taken as true.
It appears that the plaintiff was employed by the Commonwealth as a civil engineer to give measurements for concrete used in a sewer being built by the defendant under a contract with the metropolitan sewer commissioners, and forming a part of the metropolitan sewer system. This sewer was about twenty-four feet in depth and from fifteen to eighteen feet in width, and in its construction timbers or sills were first laid across the space to be excavated, and the centre line of the excavation and of the sewer was ascertained, which then became also the centre line of the sills. Resting on supports, the apex of which was substantially on this line, a cable with a travelling bucket was set up to take away the soil as the trench was dug. Upon a signal from one of the defendant’s servants designated as a “ signalman ” this bucket could be lowered, raised, or stopped, at any point or height along the line as required, by the engineer in charge of the engine by which the cable was operated. On the day of the accident the cable was in operation, and the bucket used to carry earth for back filling from the place where the excavating still was going on to a place where the sewer had been completed. In digging the trench,
If this were all the evidence, it still would be doubtful whether it could be said that the plaintiff failed to use ordinary care. But there was further testimony given by him, that during the time that he had been familiar with the operation of the cable, according to his observation extending through a period covering the entire time taken by the work, the bucket, when filled and raised, ordinarily travelled at a height of nine or ten feet from the ground level, and, when empty, at a height of about twelve feet. In these estimates he was supported by two witnesses also engaged in the same genei’al service, who saw the accident. By one of these the height of the bucket was apparently placed at twelve feet, while the other said, “ On that job I never saw a bucket pass low enough to hit a man.” It further appeared that measurements to determine the thickness of the concrete had to be taken at least daily, and the usual way of making them was for the taker to stand on the sills or timbers, where he generally would be within sight of the engineer and the signalman. The suggestion of the defendant brought out on cross-examination, that it would have been feasible for the plaintiff to have stood on one of the braces some three feet below the level of the sill and thus to have avoided the danger, while relevant, is to be considered with the other evidence, for when taken by itself it is inconclusive.
Exceptions sustained.