173 Mass. 512 | Mass. | 1899
The ruling of the court below in favor of the defendant was upon the ground that the risk was obvious, and that the plaintiff assumed the risk when he entered the employ of the defendant. We are of opinion that this ruling was wrong, and that the exceptions must be sustained.
There was evidence in the case that the pile of lumber which caused the injury was erected under the supervision of one Smith, a superintendent of the defendant, who carelessly ordered it to be done in a way which would be likely to cause it to tumble down, and who, when his attention was called to the matter, persisted in his own way of doing the job. There was also evidence that the plaintiff knew nothing about the manner in which the pile was built, until the moment of the injury. He worked near the pile for two days, building a fence, but he testified that he did not notice the pile. The pile was intended to remain but a short time, as the timbers were to be used in repairing a wharf.
In this condition of affairs, Smith ordered the plaintiff to get upon the pile, telling him “ to get up there quick and throw that piece of timber into the water.” The plaintiff went upon the pile, and, just as he started to pry off this piece of timber, the pile gave way, and the plaintiff was injured.
There was certainly evidence for the jury that the plaintiff was in the exercise of due care, and that the superintendent was negligent. This is not the case where an employee is injured by coming in contact with machinery near which he is working, as in Kenney v. Hingham Cordage Co. 168 Mass. 278. Nor is it the case of a workman on a construction track laid on secondhand sleepers, where spikes are likely to occur, as in O'Neil v. Keyes, 168 Mass. 517, the cases principally relied upon by the defendant.
It is, however, argued that the plaintiff, if he had looked at the pile, would have noticed its dangerous condition, and, if he did not see it, he could have seen it and understood it if he had looked. This is assuming that the condition of the pile was