McCoy v. Inhabitants of Westborough

Morton, J. The defendant contends that the court erred in refusing to rule, first, that the accident was one of which the plaintiff had assumed the risk, and secondly, that the acts of the superintendent in walking along the bank and stopping to look down at the workmen were not acts of superintendence. The exceptions do not state what instructions were given in regard to what would constitute acts of superintendence. It appears that the superintendent “ had general control of the whole work of digging the sewer trench”; and we think that it was competent for the jury to find that, in walking along the bank, and in stopping to look down at the workmen, the superintendent was exercising an oversight of the work, and therefore was engaged in an act of superintendence. Cashman v. Chase, 156 Mass. 342. It was for the jury to say whether, in view of the crack in the earth, it was negligent for the superintendent to stand where he did without giving any warning. It is true, as the defendant contends, that "the workman assumes the risk of such transitory changes as are incident to and ordinarily may be expected to occur in the prosecution of the work in which he is engaged, whether arising from the operation of natural causes or otherwise. McCann v. Kennedy, 167 Mass. 23. O’Neil v. Keyes, 168 Mass. 517. Beique v. Hosmer, 169 Mass. 541. But in the present case there was nothing to show whether cracks, like that shown to have existed here, are liable to occur in digging and blasting out trenches for sewers, and if so how frequently, and whether the plaintiff should have anticipated the crack which occurred; and we think, therefore, that it could not be ruled, as matter of law, that the risk was one which the plaintiff assumed. Though the plaintiff was not set to work in the particular place where he was injured, and was an experienced workman, we think that he had a right to rely 508 somewhat upon the superintendent as to the safety of the place where he was working, and it was for the jury to say whether he was in the exercise of due care. Hennessy v. Boston, 161 Mass. 502. Coan v. Marlborough, 164 Mass. 206. The exceptions state that “ the jury were fully instructed as to the duty of the plaintiff to prove that he. was in the exercise of due care,” and “as to the duty of the defendant towards the plaintiff,” to all which, as we understand, no exception was taken; We think that the exceptions must be overruled. /So ordered.