
    Thomas Hennessy vs. City of Boston.
    Suffolk.
    May 18, 1894.
    June 19, 1894.
    Present: Field, C. J., Holmes, Knowlton, Lathrop, & Barker, JJ.
    
      Personal Injuries — Due Care — Negligence — Employers' Liability Act.
    
    At the trial of an action for injuries occasioned by the caving in of the side of a sewer trench which was thirty or forty feet long, twelve or fifteen feet deep, " three feet wide at the top and one and a half feet wide at the bottom, where the plaintiff was at work, there was evidence tending to show that there was no bracing in the trench except two blocks consisting of portions of earth about four feet wide left untouched, so as to form braces which were about twenty-five feet apart; that there was no unexpected or extraneous cause for the caving in of the earth, and that the accident seemed to have resulted from natural causes ; that there was a foreman in charge of the work, whose sole or principal duty in the service of the defendant was that of superintendence, which included the duty of taking proper precautions for the safety of the men at work in the trench ; and that the plaintiff was a person of experience in digging trenches, whose duties did not require him to study the conditions affecting the stability of the earth at the sides of the trench, or to do anything except to work under the directions of the foreman. Held, that the evidence should have been submitted to the jury, who could have properly inferred that the foreman in charge of the work was negligent, and that the plaintiff was in the exercise of due care.
    Tort, under St. 1887, c. 270, for personal injuries occasioned to the plaintiff, while in the employ of the defendant, by the caving in of the side of a sewer trench in which he was at work. Writ dated December 31, 1890.
    Trial in the Superior Court, before Maynard, J., who, at the request of the defendant, ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.
    
      C. W. Cushing, for the plaintiff.
    
      S. H. Hudson, for the defendant.
   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.  