197 Mass. 332 | Mass. | 1908
This is an action of tort by a foreman in the employ of the water department of the city of Boston, for injuries sustained while attempting to move a wooden railing of a temporary bridge about twenty-four feet wide and thirteen feet long, which spanned a trench eight feet in depth, excavated by men in charge of. the plaintiff. The bridge had been erected the day before under the direction of the plaintiff at a junction of two public streets, in order to provide a passage for travellers over the excavation. On each side of the bridge and extending somewhat beyond it at both ends was a railing, which consisted of light wooden horses two feet wide at the base, resting upon but not attached to the floor of the bridge, and about two feet in from its edge, connected by planks nailed on their tops so as to form a continuous line. Either row of wooden horses could be moved by taking hold of it anywhere. Just before the accident the plaintiff, who was standing upon a bank of earth near the trench and bridge, saw two wagons, one belonging to each of the
A verdict was rendered for the plaintiff, and the exceptions of the defendants constituting the firm of Johnson and Company bring the case here. All the exceptions, except those relating to the plaintiff’s due care and assumption of risk and the effect of his violation of the city ordinance, are either expressly waived or are treated as waived because not argued.
There was evidence that it was a part of the duty of the plaintiff to see that the bridge was not obstructed, and was kept open for travel. When he saw that two wagons were in imminent danger of locking hubs, and that their drivers were not preserving a calm temper about it, it was not unreasonable for him to assume that a blockade might ensue unless something was done to prevent it, and that if he should widen the roadway a few inches, by moving outward the fence, all trouble might be avoided. It
It was assumed that the work upon which the plaintiff was engaged was being carried on in violation of a city ordinance. Certain sections of an ordinance were introduced in evidence, but there was no penalty clause offered, and therefore it might have been merely directory and not penal. The ordinance prohibited the excavation or obstruction of any street in Boston without a permit from the superintendent of streets. The plaintiff was not himself in charge of a city department, but received his orders from the superintendent of the water department. A permit for this work had been issued, but there was evidence tending to show that it had expired by its own limita
Fxceptions overruled.