Grier v. Guarino

214 Mass. 411 | Mass. | 1913

De Courcy, J.

The trench in which the plaintiff was working when he was injured was about one hundred and fifty feet long, two and one half feet wide, and between six and seven feet deep; and a sixteen-inch water pipe was being laid therein. A cross trench extended from the sidewalk to this main trench; and at the junction of the two the plaintiff was connecting the house supply pipe with the main pipe, when the earth at the corner of the bank fell in and crushed him.

The defendant’s first request was rightly refused, as there was evidence for the jury of the defendant’s negligence and of the plaintiff’s due care. As to the former it could be found on the evidence in the case that the earth at that place was "filled land,” composed of light, sandy soil, and at the corner that caved in was weighted down by the heavy macadam that had been removed from the surface of the street; that it was customary to brace such trenches, but that no bracing was in fact used and no material therefor provided although the defendant had been advised of the danger before this accident. It was incumbent on the defendant, under the contract between him and the city of Boston, to “furnish and put in place such bracing and sheathing as may be required to properly support the sides of the trenches;” and his duty extended not only to his own employees but to the plaintiff and other employees of the city who were obliged to work upon the pipes in the trench. Cleveland v. Boston Elevated Railway, 211 Mass. 75.

We cannot say as matter of law that the plaintiff was not in the exercise of due care, whatever we might decide if considering his testimony as jurors. His work required him to be in the trench for only a short period, and he knew nothing as to the length of time it had been dug, or the work that had been done on the bank. He was sent by his foreman to connect the pipes, and had a right to rely to some extent on the assumption that proper measures would be taken by the defendant for the safety of men who were obliged to do their work in the trench. Lynch v. Allyn, 160 Mass. 248. Hennessy v. Boston, 161 Mass. 502. Bartolomeo v. McKnight, 178 Mass. 242. Gile v. J. W. Bishop Co. 184 Mass. 413.

The contract between the defendant and the city was rightly admitted in evidence, and it is apparent from its provisions that the third request was refused rightly. The seventh and tenth selected for special comment some of the controverted evidence, and these the judge was not called upon to give. The subject matter of the other requests was covered in a manner that fully protected the defendant’s rights.

Exceptions overruled.