Lang v. Terry

Knowlton, J. The principal exception saved in this case was to the refusal of the presiding justice to rule that there was no evidence of due care on the part of the plaintiff. At the time of the accident, the plaintiff was engaged in the performance of his duty, putting some boards over an iron casting on the deck near the bow of the boat, in accordance with the direction of the captain. He was struck by a swinging spile which was hoisted by a derrick and steam hoisting engine for the purpose of being transferred from the steam barge to the barge on which he was working. The spile was hoisted and swung around without the use of a guide rope. It appears that he could have seen the spile before it struck him if he had been looking for it, and he testified that he knew they were going to lift the timber when they got ready and everybody was out of the way; but he did not suppose they were ready to start when they did. There was evidence that a warning was given him to look out just as he was struck, but not in time to enable him to avoid the swinging timber. One witness testified that the hoisting, after the chain was fastened to the spile, occupied only about a second. We are of opinion that it was a question of fact for the jury on the evidence, whether the plaintiff had such reason to expect [143] the hoisting of the spile without warning, and the swinging of the spile in a dangerous way, as to require him. in the exercise of ordinary care to watch the operation of the hoisting engine, and look out for himself. They might think that he had reason to expect that the spile would not be hoisted while he was at work over the grating without first giving him warning, or that it would not swing in such a way as to strike him. It cannot be said, as matter of law, that in the performance of his duty under orders from the captain he was obliged to anticipate such a danger, or to rely solely on his own watchfulness to guard against an injury which could only come from the negligence of others. Magee v. West End Street Railway, 151 Mass. 240. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532. See also Thyng v. Fitchburg Railroad, 156 Mass. 13; Maher v. Boston & Albany Railroad, 158 Mass. 36; Lynch v. Allyn, 160 Mass. 248. The questions to the expert, and his answers, were rightly admitted in evidence. There was nothing to show that there was any dispute in regard to the way in which the derrick was equipped, or that the answers of the witness involved any matter of opinion except upon subjects about which he could properly testify as an expert. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. Poole v. Deane, 152 Mass. 587. Exceptions overruled.