O'Driscoll v. Faxon , 156 Mass. 527 ( 1892 )

Allen, J.

The defendant contends that the plaintiff did not show that he was in the exercise of due care, and that for this reason the case should have been withdrawn from the jury. In support of this view it is urged that, after the cutting of the bank by Yanderbeck, the plaintiff, who was a mason of long experience, went to work under it without looking to see the effect of the cutting; that he stood upon the wall with his back to the bank; that there is always more or less breaking and scaling off in a bank; and that he ought to have anticipated that the bank might fall, knowing as he did that a shore which had been used to support it had on the morning of that day been removed. But there was evidence tending to show that the shore had been removed as a matter of necessity, in order to allow the prosecution of the work upon the wall; that no actual crumbling or breaking away of the bank was visible after the cutting, so that looking at it would not have disclosed anything of the kind; that the cutting was slight; that the bank was hard and stiff and safe to dig into, if the digging was not too deep; that Knight the foreman told him it was ready; and we think it was rightly left to the jury to determine whether at the time of the plaintiff’s injury the danger was so imminently threatening, from the general liability of the bank to break away, as to make it careless for the plaintiff to continue .his work under the direction of his foreman in building the wall. There was some conflict of evidence, and we cannot say on uncontradicted evidence that the plaintiff was not entitled to go to the jury. It was also a question for the jury to determine whether it was consistent with due care for him while at work to stand as he did upon the wall.

The defendant further contends, that upon the whole evidence no want of due care on his part was shown; and in support of this view it is urged that no notice was given to him that the bank was dangerous; that the plaintiff and his witnesses did not regard it as dangerous; that if the plaintiff, with his experience, was not guilty of carelessness in working under the bank, the defendant was not guilty of carelessness in failing to anticipate that earth from the bank might fall upon the plaintiff ; and that, if the cutting of the bank was such as to cause no reasonable apprehension of danger, then the falling of the earth was a mere accident. But we think the jury might be allowed to take a broader view of the defendant’s responsibility. The duty rested upon him of using reasonable care in providing a safe place for the masons to do their work in building the wall, and the jury might hold him bound to use reasonable care to guard against accidents which at the moment of their occurrence a workman might not anticipate, though himself in the exercise of reasonable care under the circumstances in which he was placed. Holden v. Fitchburg Railroad, 129 Mass. 268, 276. Ryan v. Tarbox, 135 Mass. 207. Elmer v. Locke, 135 Mass. 575. There was some evidence tending to show that the general plan which was adopted for protecting the bank from falling was inadequate. If the jury were of opinion that it was so, and that the defendant failed to use reasonable care in making it safe against accidents, they might lawfully hold him responsible to one who was himself in the exercise of due care at the time of the injuiy. Such seems to have been the view taken by the jury, and we cannot say, upon the evidence, that it was the duty of the presiding justice to withdraw the case from their consideration.

The witness Casey was asked what was the proper protection to use, to prevent such a bank or any part of it from falling. This question was objected to by the defendant, but it was clearly competent in form, it being assumed that Casey was qualified to testify as an expert on that subject. In answering the question, the witness stated how he protected his part of the bank, apparently referring to another part of the same bank. No objection was taken to the form of the answer, and he was further asked in what way, under certain supposed facts, he would prevent the bank from falling, and this question was answered without objection. The witness added, still without further objection from counsel, “ That is what I did on Edinboro Street, right alongside of this very property.” The court thereupon interposed, saying, “ If that is objected to, he cannot state that,” and the witness was limited to stating his opinion as to the,proper way of doing it. Strictly speaking, the statement of what the witness had himself done in a particular instance may have been improper, and this view was expressed by the court at the time. This mode of answering appears to have been intended merely as a form of giving the opinion of the witness. The objection taken by counsel did not relate to the form of the answer. The jury were sufficiently cautioned upon the subject. The exception actually taken cannot be supported. The slight irregularity of the witness in making his answer was not covered by the defendant’s exception, and furnishes no ground for our granting a new trial.

We find no error in law in respect to the instructions which were asked by the defendant.

His first and second requests rested on the position taken by him that the digging out of the bank was not ordered by himself, but by Knight, the foreman of the contracting mason, and that therefore he (the defendant) was not responsible for the consequences, even though Vanderbeck, the man who did the work, was in his general employment. The instructions as to the respective duties and obligations of the defendant and of the contracting mason sufficiently covered the requests which were made, and explicitly dealt with the view of the law presented by the defendant, on the assumption that the digging was not ordered by himself.

The defendant criticises the addition by the presiding justice to the seventh requested instruction; but we see no error of law in it.

The third, tenth, eleventh, and fourteenth requests were complied with in substance. It was not necessary to adopt the precise phraseology of the requests.

The sixteenth request was rightly refused, and the subject of it was sufficiently covered by the instructions given.

The defendant’s counsel in the argument make some other criticisms upon expressions used in the judge’s charge to the jury. The instructions requested were numerous, and the charge was full and minute. Without meaning to imply that the criticisms are well founded, we must limit our examination to exceptions actually taken, unless it is apparent that substantial injustice has been done, and that the verdict which was rendered cannot be supported in law.

Exceptions overruled.