Hennessy v. City of Boston

37 N.E. 668, 161 Mass. 502, 1894 Mass. LEXIS 228

• Court: Massachusetts Supreme Judicial Court
• Decided: June 19, 1894
• Status: Published

Opinion

Knowlton, J.

The plaintiff was injured from the caving in of the side of a sewer trench in which he was working, and which was thirty or forty feet long, twelve or thirteen feet deep, three feet wide at the top and about one and a half feet wide at the bottom. There was evidence tending to show that the foreman in charge of the work was a person whose sole or principal duty in the service of the defendant was that of superintendence. It was his duty to take proper precautions for the safety of the men at work in the trench. He should have observed carefully the character' of the soil, and all other conditions which would enable him to determine what should be done to prevent such accidents as that which happened to the plaintiff. It appears that there was no bracing in the trench, except two blocks about twenty-five feet apart. These blocks were portions of earth about four feet wide, which were left untouched so as to form braces. So far as appears there was no unexpected or extraneous cause for the caving in of the earth, and the accident seems to have resulted from natural causes. The jury might well have believed from the evidence, that, if the foreman had exercised such skill and foresight as men of ordinary ability and experience in charge of such a work are accustomed to use, the accident would not have happened. It was an accident of a kind that is commonly preventable by the exercise of ordinary care, and the accident itself, in connection with the circumstances shown in regard to the depth of the trench and the slope of its sides, and the distance of the braces from each other, furnishes evidence from which the jury might have found negligence on the part of the foreman in charge of the work. White v. Boston & Albany Railroad, 144 Mass. 404.

The question whether the plaintiff was in the exercise of due care was also a question of fact for the jury. He was engaged in the performance of his duty in the ordinary way. Although he was a person of experience in digging trenches, it was no part of his duty to study the conditions affecting the stability of the earth at the sides of the trench, nor to do anything except to work as well as he could under the directions of the foreman. While he was bound to use ordinary care to prevent injury, the responsibility for the condition of the trench in regard to safety was primarily upon the foreman, and the plaintiff might well trust something to him in determining wrhether he could safely work in the trench. We are of opinion that the case should have been submitted to the jury.

Exceptions sustained.