Cavagnaro v. Soule

Morton, J. There was evidence warranting a finding that the sole or principal duty of Ray was that of superintendence, and that the boom was placed by his direction leaning up against the wall as it was at the time of the accident. There was also evidence that the plaintiff was in the exercise of due care ; but we see no evidence of negligence on the part of the superintendent. It was agreed that as the boom stood it was leaning against the wall at an angle of forty-five degrees, and the evidence showed that the foot of it rested upon a three inch plank. The plaintiff, by the direction of Ray, was working near the boom when the end that rested on the plank slipped and struck his foot causing the injuries complained of. There was nothing to show what caused the boom to slip. For aught that appears the boom, when it was placed in the position in which it was at the time of the accident, was rested securely at one end upon the plank and at the other against the wall. What caused the accident is altogether a matter of. conjecture. It would seem probable that in removing the pieces which constituted the foundation of the derrick, the plank on which the boom rested was in some way struck or jarred by the workmen engaged with the plaintiff in that operation so as to cause the boom to slip. It cannot be said that it was or could be found to be negligent to place a stick of timber fifty-two feet long and ten by twelve inches leaning against a wall at an angle of forty-five degrees, with one end resting on a plank and the other end resting against the wall. Notwithstanding the lateral thrust it naturally would be supposed that if the ends were securely placed the mere weight of such a piece of timber would tend to hold it firmly in position. See Childs v. American Express Co. 197 Mass. 337. Brodie v. Rockport Granite Co. 197 Mass. 147. Thomas v. Boston Elevated Railroad, 193 Mass. 438. Moreover it would seem in view of the plaintiff’s experience that the risk of such an accident as occurred was one of the obvious risks of the employment. Exceptions overruled.