Powers v. City of Fall River

Lathrop, J. The work which was going on at the time of the injury to the plaintiff was under the direct supervision and control of a foreman of the defendant, who it is-conceded was a superintendent within the meaning of the statute, and there was evidence that his sole duty was that of superintendence. The plaintiff did precisely what he was told to do, and it is not contended that he was not in the exercise of due care. There was evidence of negligence on the pa.rt of the superintendent in at least two particulars; first, in using the tripod instead of the derrick in hoisting so large a stone out of the trench; and, secondly, in not putting planks across the trench under the stone after it had been hoisted above the surface of the ground. If this had been done, the stone could have been lowered to the planks, and removed without further use of the tripod. The swinging in of the stone to the surface of the ground would then have been unnecessary, and the catastrophe would have been avoided. The principal contention of the defendant at the argument in this court was that the plaintiff took the risk. He undoubtedly took the ordinary risks of his employment, but it cannot be said, as matter of law, that the falling of the tripod into the trench was an ordinary risk. It was for the foreman to determine which appliance to use, the tripod or the derrick. The plaintiff had a right to rely to some extent upon the experience of the foreman, even if he knew all the conditions, which does not clqarly appear. On all the evidence we are of opinion that the question whether the plaintiff assumed the risk was for the. jury. Haley v. Case, 142 Mass. 316. Lang v. Terry, 163 Mass. 138. Coan v. Marlborough, 164 Mass. 206. Norton v. New Bedford, 166 Mass. 48. Exceptions overruled.