Wicklund v. Howard
206 Mass. 458
Mass.
1910
Check Treatment
Morton, J.

We assume in favor of the plaintiff that Lackstrom was a superintendent and that the intestate, Wicklund, was in the exercise of due care. But we think that there was no evidence of negligence on the part of Lackstrom. It was not contended that the stone was dropped down through the staging on Wicklund as he was at work at the foot of the derrick. The account of the accident given by the plaintiff’s witnesses negatived any such possible contention. It appeared that it was customary to lower large pieces of stone by a derrick, and to drop smaller pieces from the staging, and to give a warning when stones were to be lowered by the *462derrick or dropped from the staging. The uncontradicted testimony showed that the stone which caused the injury was dropped by Laebstrom from the end of the staging five or six feet away from where Wicklund was at work, and that before Lackstrom dropped the stone he gave two warnings, both of which were heard by Wicklund. The testimony also showed that when the second warning was given Wicklund left the place of safety where he was and ran out from under the staging just as Lackstrom dropped the stone over the end of the staging. Wicklund’s object was to reach a doorway which he thought a place of greater safety. But he said nothing and did nothing, though he heard the warning, to put Lackstrom on his guard, and Lackstrom had no reason to anticipate that Wicklund would leave the place where he was and “ make a rush,” as one of the witnesses described it, “ for the doorway.” We do not see therefore how Lackstrom can be said to have been negligent in dropping the stone as he did. Laebstrom testified that he looked under the staging before he dropped the stone, and saw Wicklund at the derrick, and that in answer to his warning Wicklund said “ All right.” The jury, however, might not have believed that. The question is whether upon the uncontroverted evidence the jury were warranted in finding that Lackstrom was negligent, and, as we have said, we do not think that they were. The mere fact that he dropped the stone from the staging instead of lowering it with the derrick could not be said under the circumstances to be of itself evidence of negligence.

Judgment on the verdict.