Di Bari v. J. W. Bishop Co.

Morton, J. As this action finally went to the jury there were two questions for them to consider: first, whether the plaintiff’s husband was in the exercise of due care or had as [257] sumed the risk; and secondly, whether the defendant or its superintendent was negligent in not providing more men to do the work and, if they were negligent, whether such negligence was the cause of the death of the plaintiff’s husband. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the judge to direct a verdict in its favor, and to the instructions which the judge gave in regard to the second question. It could not have been ruled as matter of law that the plaintiff’s husband was not in the exercise of due care, or that he assumed the risk. There was testimony tending to show that he had been in this country only about two months, that he did not speak or understand English, that he had worked as a laborer in shovelling and picking; and that he went to work on the job the day before he was killed, having previously had no experience in that kind of work. There is nothing to show that he was not doing in the usual way the work which he was set to do. And there was evidence warranting the jury in finding that, if any warning was given by the superintendent, the deceased failed to understand it, and that from want of experience he did not appreciate the danger of the pole’s falling, and therefore did not assume the risk. There also was evidence warranting them in finding that his failure to avoid the danger may have been due to confusion on his part resulting from the imminence of the peril and his want of experience. The fact that the others escaped and that he might, perhaps, have done so if he had been less confused or had moved more quickly was a matter for the consideration of the jury in passing upon the question of his due care. It could not be ruled as matter of law that he was wanting in due care because in a moment of sudden peril he failed to use the best means of escape. Olsen v. Andrews, 168 Mass. 261. We see no error in the instructions in regard to the matter of alleged negligence on the part of the defendant in failing to supply a sufficient number of workmen for the erection of the pole in safety. Such negligence stands on the same footing as negligence in furnishing suitable appliances. In a sense workmen are appliances. If a master knowingly employs servants who are incompetent by reason of their habits or otherwise he is liable for an injury occasioned to a fellow servant by their incom [258] petenoy just as he would be liable for an injury caused by a defective machine. Gilman v. Eastern Railroad, 13 Allen, 433. McPhee v. Scully, 163 Mass. 216. And on principle we do not see why a master should not also be held liable for injuries resulting from his negligence in failing to furnish a suitable number of servants to do the work required of them. There was evidence warranting the jury in finding that a sufficient number of men was not furnished by the defendant to enable those engaged in erecting the pole to do the work in safety, and that such negligence was the proximate cause of the death of the plaintiff’s husband. Exceptions overruled.