Jones v. Pacific Mills

Hammond, J. At the argument before us the exception that the evidence showed that the plaintiff was not in the exercise of due care was waived. 1. As to the negligence of the defendant. Under the instructions the jury must have found upon the evidence that the ladder broke while the plaintiff was using it in the manner in which he was expected to use it, and for the purpose for which it was intended to be used, and that it was defective. It was incumbent upon the defendant to use reasonable care to provide a safe ladder for the plaintiff, and to keep it safe; and it is contended by the plaintiff that, in the absence of any satisfactory explanation, the fact that the ladder is not safe for the [356] use for which it .is intended may be of itself some evidence that such care had not been used, and consequently that there was negligence on the part of those answerable for such care. Graham v. Badger, 164 Mass. 42, and cases cited. Without, however, passing upon this contention, we are of opinion that there was other evidence bearing upon the question of the defendant’s negligence. The broken ladder was shown to the jury at the trial, and they had full opportunity to see exactly the manner in which it had been spliced, and the effect upon its strength. Moreover, the experts for the plaintiff testified that the side of a ladder thus spliced was only one half to three fourths as strong as thé side not spliced “ when the splice was new, and that it grew weaker by use as time went on.” hTor does it appear that any care was taken, after the ladder was spliced, to see what its condition was. Upon this state of the evidence we cannot say as matter of law that the jury were not warranted in finding that the defendant was negligent. 2. The defendant contends that the plaintiff was a man of mature years and ample experience in using ladders; that he knew this ladder had been spliced, and, since the danger was obvious, he voluntarily assumed the risk of using it in the condition in which it then was. The plaintiff may fairly be held to have assumed such risks as were obvious, or such as he knew and appreciated. The plaintiff knew that this ladder had been spliced, and that three bolts from two to three inches apart had been used to fasten the parts together, but the ends of the bolts were covered by nuts so that he could not see how large the bolts were and exactly how much of the wood there was left, although he must have known that there was not so much wood as before. The experts for the plaintiff testified as hereinbefore stated concerning the strength of the side which was spliced, and one testified that “the spliced side would not be more than one half to three quarters as strong as the other after it had been used six months.” The carpenters and master builders called as experts for the defendant testified that ladders spliced as was this were, in their judgment, as strong as a ladder not spliced. [357] In this state of the evidence we do not see how it can be held as matter of law that the danger of using this spliced ladder was so obvious that the plaintiff must be held to have assumed the risk, or that he must be held to have known and appreciated the danger arising from using such a ladder. Packer v. Thomson-Houston Electric Co. 175 Mass. 496. We think that upon the evidence the questions whether the accident was attributable to the use of the ladder as it was intended to be used, whether the defendant was negligent, and whether the plaintiff knew and appreciated the risk arising from the manner in which this ladder had been,spliced, were questions of fact for the jury. Exceptions overruled.