201 Mass. 393 | Mass. | 1909
While the plaintiff was engaged with other men in moving a safe up some stairs in a house, the rope by which the safe was held parted, and he was injured by the safe falling against him. For the injuries thus received these two actions were brought, one against his employers and one against the alleged superintendent. The ground of action alleged in each case was the negligence of the superintendent. The cases were tried together, and are before us upon exceptions taken in each case by the defendants.
Like many other cases of a similar nature, they involve no new principle of law, but simply the application of well settled rules to the peculiar facts of the cases. The evidence upon many of the material points was conflicting, but we think that the jury may well have found that the plaintiff was in the exercise of due care; that Newcomb was acting as superintendent of the men and of the work at the time of the accident; that for some reason the safe became “ stuck ” at one point on the stairway; that while it was thus stuck Newcomb gave the order to pull all together on the rope, and that in obedience to that order great force was used by the men; and that by reason of the force the rope broke and the safe struck the plaintiff who was standing below it in the line of his duty. The jury properly might have found further that the order to pull “ all together ” was an act of superintendence, and that in view of the size of the rope, and of the obstinate and somewhat unusual resistance of the safe at that particular stage of its progress it was Newcomb’s duty to investigate the cause of the sticking before giving the order, and that under the circumstances the order was negligently given. In a word, there was evidence of the due care of the plaintiff and of the negligence of Newcomb as superintendent, and this made out a case for the plaintiff in each case unless the plaintiff assumed the risk. Duffy v. Upton,
It could not be ruled as matter of law that the plaintiff assumed the risk. The question was one of fact for the jury and it was submitted to them under instructions sufficiently favorable to the defendants.
We have carefully collated the requests for rulings made by the defendants with the instructions actually given, and can find no error in the manner in which the trial judge dealt with the requests. The instructions given were full, apt and correct.
Exceptions overruled.
