Murray v. Rivers

Barker, J. Upon the plaintiff’s own testimony and that of the witness called by himself it could be found that he was in the exercise of due care in the prosecution of his work when injured, and that the accident was due solely to the negligence of Bouleau in giving the engineer the order in obedience to [54] which the latter let the hammer fall, before Bouleau received from the plaintiff the word which was to indicate that the order properly could be given. It is practically conceded by the defendant’s brief that Bouleau’s principal duty was that of superintendence, and that it was so could be found from the evidence. Although upon the evidence submitted by the defendant the finding would be that when the plaintiff was hurt there was nothing in his duty which required him to be trying to move the pile, either with his hands or by other means, and that there was nothing to require Bouleau at that stage of the work, to look out for the plaintiff’s safety, or to expect any signal or word from the plaintiff before giving the order which released the hammer, and although upon the same evidence it was an absurd contention that the plaintiff was then attempting to move the pile with his hands, it was for the jury to weigh the whole evidence, and determine the real facts. Therefore it was right to submit the case to the jury. The ruling requested by the defendant and refused under exception : “ That if Bouleau did not know, and by the exercise of reasonable care would not have known, that plaintiff’s fingers were or would be on the top of the pile, it was not negligence on his part to give the signal to the engineer to start the hammer, and to take the shelf out from under it to let it descend,” was one founded upon a partial view only of the evidence, and the evidence upon which it was founded was contradicted. The ruling could be refused rightly in the discretion of the court, if correct instructions covering all aspects of the case as they related to the alleged negligence for which the plaintiff sought to hold the defendant answerable were given in the charge. In our opinion it appears that such instructions were so given. Exceptions overruled.