Di Bari v. J.w. Bishop Co.
| Decision Date | 15 June 1908 |
| Citation | 199 Mass. 254,85 N.E. 89 |
| Parties | DI BARI v. J. W. BISHOP CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
George S. Taft and George R. Stobbs, for plaintiff.
E. H Vaughan, Edward T. Esty, and Jay Clark, Jr., for defendant.
As this case finally went to the jury there were two questions for them to consider: First, whether the plaintiff's intestate was in the exercise of due care or had assumed the risk; and, secondly, whether the defendant or its superintendent was negligent in not providing some man to do the work and, if they were, whether such negligence was the cause of the death of the plaintiff's intestate. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to direct a verdict in its favor, and to the instructions which the court gave in regard to the second question.
It could not have been ruled as matter of law that plaintiff's intestate was not in the exercise of due care or that he assumed the risk. There was testimony tending to show that he had only been in this country about two months that he did not speak or understand English, that he had worked as a laborer in shoveling 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 poles falling and therefore did not assume the risk. There was also 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, 47 N.E. 90.
We see no error in the instructions in regard to the matter of alleged negligence on the part of the...
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