168 Mass. 395 | Mass. | 1897
This is an action for personal injuries caused by the caving in of the sides of a trench in which the plaintiff was at work. There is a count at common law for not shoring the sides, and one under the employer’s liability act (St. 1887, c. 270) for negligence of the defendant’s superintendent in omitting the
The offer of evidence may be disposed of in a few words. If the plaintiff relied on the defendant for more than he had a right to, he did so at his own peril, and he had no right to prove it. If he only relied on those precautions being taken which it was the defendant’s duty to take, evidence was superfluous to show that he had not waived his rights. Whichever may have been the ease, the private operations of the plaintiff’s mind were no measure of the defendant’s duty.
The only question is what the plaintiff had a right to expect from the defendant when set to work in such a place. He had not a right to expect it to shore the sides of the' trench or to make it safer than it was, because, as was manifest, and as the plaintiff must be taken to have known, the defendant had no control over the trench. He had a right to expect that, if the defendant knew of any danger which the plaintiff did not know
Exceptions overruled.