| Mass. | Nov 11, 1889
There was evidence tending to show that the plaintiff was employed on work which required him to use the elevator; that the elevator was operated by a belt which passed over a pulley situated about twenty feet from the elevator ; that the belt was off from the pulley; and that the plaintiff’s injury occurred while he was putting it on, in order to enable him to use the elevator in doing his work. It seems to have become a question, at the trial, whether it was necessary for the plaintiff himself to attend to putting on the belt, under the circumstances which then existed. The plaintiff had been allowed, subject to an exception by the defendant, to show that there was nobody whose duty it was to put the belt on when it was off; and he afterwards called a witness, by whom he proposed to show further that the belt was frequently off, how it was put on, and who put it on; and “ that there was not anybody specially charged with that; that everybody did it that had to use the elevator,—had to put the belt on.” This evidence was excluded. We think it was competent, as one important element of the plaintiff’s case was to show that he was in the line of his duty in attempting to put on the belt at the time when he was hurt. The fact that the defendant afterwards introduced testimony to show that there was another man whose duty it was to
This material evidence having been excluded, there must be a new trial, unless it can be seen that, even if it had been admitted and believed, still the verdict must have been for the defendant. The ground upon which the case was withdrawn from the jury is not stated. We cannot say, as matter of law, that no sufficient evidence was introduced or offered of negligence on the part of the defendant, or of freedom from negligence on the part of the plaintiff. He offered to show that the belt was frequently off. This evidence, if admitted, would have had a tendency to show that the machinery was not suitable, and that it needed frequent readjustment. The testimony in respect to the projection of the set screw, and to its subsequent removal, was in the same direction. If the machinery was found to be unsuitable, and if the plaintiff was within the line of his duty in attempting to adjust the belt, we cannot say that he was not entitled to go to the jury on the question of whether he was in the exercise of due care. The evidence bearing upon this point, as reported, is not altogether clear, and does not enable us to understand fully what it was necessary to do in order to adjust the belt, or how it was usually put on the pulley when it had got off.
Exceptions sustained.