Bartolomeo v. McKnight

Morton, J. This is an action to recover for personal injuries sustained by the plaintiff while in the defendant’s employ as a laborer engaged in laying water pipes in a trench dug by the defendant in Washington Avenue, Chelsea. The accident was caused by the caving in of the side of the trench. There are counts at common law and counts under the employers’ liability act alleging negligence of a superintendent. At the conclusion of all of the evidence the defendant asked the court to direct a verdict for him. The court declined to do so. There was a verdict for the plaintiff on the common law counts, and the case is here on the defendant’s exceptions to the refusal of the court to direct a verdict for him and to the admission of certain evidence. We think that there clearly was evidence of negligence on the part of the defendant in setting the plaintiff to work in an unsafe and dangerous place. The trench in which the plaintiff was at work was unshared and unsupported. There was evidence tending to show that no material for shoring or bracing was fur [246] nished by the defendant. There was also evidence tending to show that the nature of the soil through which the trench was dug, and the depth of the trench and the manner in which it was dug, were such as to render the sides of the trench liable to fall and dangerous, and that the defendant was on the spot and had an opportunity to observe the condition of the trench. It was his duty to see that the place where the plaintiff was set to work was reasonably safe or that suitable material was provided for making it so. Norton v. New Bedford, 166 Mass. 48. Coan v. Marlborough, 164 Mass. 206. Hennessy v. Boston, 161 Mass. 502. There was evidence warranting the jury in finding that he failed in the performance of this duty and that the plaintiff was injured in consequence of such failure. The defendant further contends that the plaintiff was not in the exercise of due care. From the plaintiff’s testimony it is evident that he had had considerable experience in working in trenches and laying pipes for the defendant and others in various places. He was bound to exercise a reasonable degree of vigilance in regard to the safety of the place where he was working. But he was not bound to inspect the sides of the trench before going to work. He testified that before the accident he did not know that there was any danger of the trench caving in. He was an ordinary laborer bound to follow the directions of the defendant and his foreman. He had a right to rely to some extent on the assumption that they would take proper measures for his safety and would not put him to work in a dangerous place. The extent to which under the circumstances of the case he might properly rely on them, and whether he was in the exercise of due care were questions for the jury. Norton v. New Bedford, Coan v. Marlborough, and Hennessy v. Boston, ubi supra. Lynch v. Allyn, 160 Mass. 248. It was for them to give such weight to his own testimony and to the testimony of such other witnesses, if any, as tended to impeach it, as they thought it was entitled to. The remaining exceptions relate to evidence of what was said to the defendant’s foreman and in his presence of the dangerous character of the trench and the need of bracing. We think that it was rightly admitted. The case was tried on counts under the employers’ liability act alleging negligence on the part [247] of a superintendent or of one exercising superintendence as well as under counts at common law. The fact that the foreman’s attention was called to the danger of the trench and the need of bracing seem to us to have been clearly competent on the question of negligence on his part. The precautions which the witness Beedy took for his own safety were admissible as bearing on the dangerous character of the trench. Moreover, it was admissible to rebut any inference which might be drawn prejudicial to his testimony from the conduct of the witness in going down into the trench. Exceptions overruled.