McCauley v. Norcross

Allen, J. The only exception taken was to the refusal to rule that upon all the evidence the plaintiff could not recover. We therefore have only to consider whether, in any aspect of the case, upon the facts and testimony stated, there was anything for the jury. It appears that near an open hole in the floor a few iron beams were placed, which had been there for two or three days. These beams were about four and a half feet long, and weighed about forty pounds each. They were about three and a half feet from the hole. The defendant’s superintendent, Clark, being on crotches, and walking about the floor upon which the beams were placed, in order to pass between a pile of planks and these beams, pushed one of the beams with his foot. The beam swung around on the other beams, and fell off from them, and down through the hole, on to the plaintiff. Upon these facts, the jury might find that the iron beams were negligently so placed and left that one of them would be liable, from a slight inadvertent push of the foot of a passer by, to fall through the hole. Being left in this condition for two or three days, the jury might infer a lack of due and proper superintendence. Allowing such things to be negligently left for so long a time in a position where they were likely or liable to be toppled over, and one of them to fall through the hole in the floor, would warrant a finding of negligence on the part of the superintendent in exercising superintendence. The fact that the superintendent himself happened to be the person who pushed the beam with his foot is of no importance, because that was not an act of superintendence. If the beams were so left that one of them would be liable, as a natural consequence, from some intervening cause or agency, to be so moved that it might fall through the floor, the fact that an intervening act or agency occurred which directly produced the injurious result would not necessarily exonerate the defendants from responsibility. Superintendence is necessary in order to guard against injuries from such intervening and inadvertent acts of careless persons as are likely to happen and ought to be guarded against. The question is whether the moving of a beam was so likely to occur that it ought to have been provided against by the superintendent. It might be found that the beams were [587] negligently left near the hole in the floor, where they were likely or liable to be toppled over so that one of them might fall through the hole, and thus injure some one below, and that this was the proximate cause of the plaintiff’s injury, although some careless person came along and toppled them over. Derry v. Flitner, 118 Mass. 131. Salisbury v. Herchenroder, 106 Mass. 458. McDonald v. Snelling, 14 Allen, 290, 294, 296. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. Stock v. Boston, 149 Mass. 410, 414. Spicer v. Lynn & Boston Railroad, 149 Mass. 207, 210. Smethurst v. Barton Square Church, 148 Mass. 261, 265. Clifford v. Atlantic Mills, 146 Mass. 47. Hayes v. Hyde Park, 153 Mass. 514. In the opinion of a majority of the court, the entry must be, Exceptions overruled.