Butler v. New England Structural Co.

Morton, J. This is an action of tort to recover for personal injuries received by the plaintiff from the fall of a boom belong [401] ing to a derrick on which he was working at the time of the accident. There was a verdict for the plaintiff and the case is here on report. “ If the defendant’s requests should have been given, judgment is to be entered for the defendant. Otherwise, judgment is to be rendered upon the verdict for the plaintiff.” We think that the rulings requested were rightly refused. The defendant does not seriously contend that the want of a pawl on the drum by means of which the boom was raised and lowered did not constitute or could not have been found by the jury to constitute a defect in the derrick. It is plain that the jury were warranted in finding, as they must have found, that the want of a pawl rendered the derrick defective, and that the oak stick and the manner in which it was used to keep the drum in place constituted an unsafe appliance. The defendant contends more earnestly that there was no evidence that the defect in the derrick was the proximate cause of the injury. There was no question but that the boom fell, and that it was its fall which caused the plaintiff’s injuries. The defendant contends that for aught that appears the stick may have been displaced and the boom caused to fall by negligence on the part of one of the plaintiff’s fellow servants; and that, if so, that was the proximate cause of the plaintiff’s injury. But the fact, if it was a fact, that negligence on the part of one of the plaintiff’s fellow servants may have contributed to the accident would not necessarily as matter of law relieve the defendant. The defective and unsafe condition of the derrick might still be found to be the proximate cause of the plaintiff’s injury. Lane v. Atlantic Works, 107 Mass. 104; S. C. 111 Mass. 136. The question was one for the jury, taking all the circumstances into account, to pass upon, and was left to them under instructions as to what would constitute “ proximate cause,” which were not objected to. The question whether the plaintiff was competent to execute the release relied on by the defendant, and understood what he was doing, also was a question for the jury. It could not be ruled as matter of law that there was no evidence that would warrant a finding that he was of unsound mind when it was executed. Judgment on the verdict.