Drommie v. Hogan
153 Mass. 29
Mass.
1891
Check Treatment
W. Allen, J.

If the words, “ by reason of a defective or insufficient staging, and the fall of the staging,” were an insufficient statement of the cause of each plaintiff’s injury in the notice given to the defendant, which we do not decide, there was evidence properly submitted to the jury that there was no intention to mislead, and that the defendant was not in fact misled thereby.

The prayer for a ruling that, if the fall of the staging was caused by a stone dropped upon it by either of the plaintiffs or their fellow servants, subjecting it to unusual and extraordinary strain, which was not reasonably to be expected, the plaintiffs could not recover, was properly refused. The only evidence in regard to the dropping of a stone was the testimony of the defendant that Drommie, one of the plaintiffs, said to him, Buchanan “ called me [Drommie] to lift the stone and we got the *33stone so high (showing), and we let the stone fall down.” There was no other evidence that a stone fell, and this testimony was denied by Drommie. There was no evidence that a stone fell as against any of the plaintiffs except Drommie, and the prayer for a ruling in all the cases was, for that reason, properly refused. If the prayer related to Drommie’s case alone, we think that the ruling asked, so far as it was correct, was sufficiently given in the instructions to the jury. Under the instructions given, the jury must have found in Drommie’s case that the staging was defective, that the defect caused it to fall, whereby the plaintiffs were injured, and that no negligence of the plaintiff, or of a fellow servant, was a contributing cause. The instructions given required the jury to find for the defendant if they found that the fall of the stone was the sole cause of the giving way of the staging, or if it was a contributing cause with the defect, and was by the fault of the plaintiff, or of his fellow servants. Construed as a request for a ruling that, if the dropping of a stone was the sole cause of the fall of the staging, the plaintiffs could not recover, the ruling was made in substance and sufficiently; construed as a request for a ruling that, if the dropping of a stone was a contributing cause of the injury and was a pure accident, the plaintiffs could not recover, the prayer was properly refused. In this aspect, the degree of the strain upon the staging caused by the stone is immaterial.

Upon the questions whether the staging was defective, and whether the defect caused its fall, the degree of force and pressure under which it gave way would be material; but after it is found that the staging was defective, and that the defect caused it to fall, and that an accidental strain was a contributing cause, the force and violence of that strain are immaterial; it could do no more than contribute to the injury, and the degree of contribution cannot be apportioned. The strain, however extraordinary, was the result of an accident which happened, and was liable to happen, in the ordinary use of the staging. It would have been manifest error to instruct the jury, that, if they found that the staging was defective through the negligence of the defendant, and that that defect caused it to fall, and that no negligence of the plaintiffs or their fellow servants contributed thereto, yet the plaintiffs could not recover if the accidental *34dropping of a stone upon the staging was a contributing cause of its fall. The circumstances did not call for particular, full, or explicit instructions in regard to the effect of the evidence in Drommie’s case, which tended to show that a stone fell upon the staging. .No instructions were asked as to his case alone. The instructions given upon the five cases tried together contained in substance all that could have properly been given in Drommie’s case, and there was no request to give instructions especially applicable to his case.

No other exception has been argued, and we find no error in any ruling or refusal to rule of the court.

Exceptions overruled.