O'driscoll v. Faxon
| Decision Date | 23 June 1892 |
| Parties | O'DRISCOLL v. FAXON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Defendant's seventh requested instruction was "that ordinary care is all that is required of Faxon in protecting the bank; and if he has taken such care as men of ordinary prudence would have done in the same situation, and under the same circumstances, he is not liable." In giving this the court added: "I instruct you, gentlemen it is a question of fact for you to determine what care the plaintiff exercised when he went there to put this stone in after the digging." The contract between Smith and Faxon provided that Smith should do the mason work, provide proper protection to the work, and be responsible for all damages by accident from the weather and other causes. Faxon agreed to provide all labor and material not included in the contract with Smith, and to do it seasonably, so as to make way for Smith, and not impede him when he came to do his part of the work. Defendant's sixteenth requested instruction was: "By the terms of that contract the protection of the bank, so far as Mr. Smith's workmen are concerned was incumbent on Mr. Smith, and not on Mr. Faxon."
S.J Elder, Wm. C. Wait, and P. O'Loughlin, for plaintiff.
Lund, Jewell & Welch, for defendant.
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the plaintiff did not show that he was in the exercise of due care, and that for this reason the case should have been withdrawn from the jury.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 Vanderbeck, 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 ...
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