163 Mass. 221 | Mass. | 1895
The plaintiff cannot recover upon the first count. There was no defect in the material, plan, or construction of the staging, and the presence of the stone upon it was not a defect in ways, works, or machinery, within the meaning of the statute. St. 1887, c. 270. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. Lynch v. Allyn, 160 Mass. 248, 252. Burns v. Washburn, 160 Mass. 457.
While the jury might have found that the sole or principal duty of the defendant’s foreman was that of superintendence, we are of opinion that the evidence did not justify a finding that the foreman was negligent in not discovering that the ledge stone was so placed as to be liable to fall. The case is in some
We do not think, in the absence of evidence that the stone had been so placed by any specific order of the foreman, or that he had had occasion to visit that part of the work while the stone was there or had actual knowledge that the stone was left upon the staging, and in view of the fact that how much of the stone projected could only be seen from above, that the mere fact that a stone had been left for two or three days with such a considerable portion of it projecting beyond the staging as to make it liable to fall if it should be hit, or if the staging should be jarred in the prosecution of the work, would justify a finding that the foreman was negligent in exercising superintendence.
This view of the case makes it unnecessary to consider whether the evidence shows that the plaintiff was himself in the exercise of ordinary care in placing himself where he did.
Exceptions overruled.