Negligence, Employer's liability. Evidence, Competency. If, while plasterers are preparing to erect a temporary staging to use in their work, a superintendent interferes and orders them for the purpose of supporting the temporary staging at one end to use a certain ledger board, which obviously is defective and unfit, but which the superintendent fails to inspect or to have inspected, and if the plasterers obeying the superintendent use the ledger board, and later another plasterer who did not assist in erecting the staging is injured by its giving way on account of the breaking of the defective ledger board, there is evidence on which the employer may be found to be liable to the plasterer for the injury caused by the negligence of the superintendent, although the same ledger board has been used for two weeks previous to the accident to support a temporary staging for carpenters and lathers without breaking.
Evidence naturally relevant, which is incompetent by reason of a rule of law, such as a witness's opinion or his conclusion of fact, if it is admitted without objection becomes a part of the case and may be considered by the jury and by this court, and it does not matter that the trial judge has certified that if the evidence had been called to his attention he would have excluded it and that he did not consider it in making his ruling on the case.
LORING, J.
[After the foregoing statement of the case.] We are of opinion that this exception must be sustained.
An employer can leave to his employees the erection of stagings which are used temporarily in the course of work. If he elects to do so and furnishes them with proper materials, and is not negligent in the selection of his employees, he is not liable. Thompson v. Worcester, 184 Mass. 354. But in the case at bar Beady, who could be found to be a superintendent, interfered and directed the employees to use the ledger board, without inspecting it to see if it was safe. This could be found to have been an act of superintendence and so within Murphy v. New York, New Haven, Hartford Railroad, ante, 18, and not within Shea v. Wellington, 163 Mass. 364, and Whittaker v. Bent, 167 Mass. 588.
If the act could have been found to be a negligent act the defendants are liable. To direct an employee to use a ledger board which is in fact obviously defective and unfit, without inspecting it or having it inspected to see if it is fit, is as much an act of negligence as to inspect it without discovering the defect. What raises a doubt in the case at bar is that the plaintiff's witnesses testified that the ledger board which broke had been in use for two weeks to support a staging used by carpenters and lathers which consisted of some boards or planks which Lane testified "We stripped and substituted our planks for them" on the morning of the accident in question. Why the ledger board broke under the use it was put to by the plasterers after standing two weeks' use by carpenters and lathers does not appear. Neither does it appear whether the boards which were stripped off were lighter than those put on, or whether more weight was on the staging when it was used by the plasterers. We do not think that the two weeks' previous use without breaking was sufficient under this state of the evidence to control what was or might be found to be otherwise an act of negligence.
The certificate of the presiding judge as to the last answer of the witness Silva does not take that testimony out of the case. Incompetent evidence admitted without objection becomes evidence. Damon v. Carrol, 163 Mass. 404. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93. Allen v. Fuller, 182 Mass. 202. Brightman v. Buffington, 184 Mass. 401. The ruling must stand on the evidence as it stood when the ruling was made. It is of no consequence that the judge now certifies that if a certain piece of evidence had been called to his attention he would have excluded it, nor that he did not have that piece of evidence in mind when he made his ruling.
But this is not of consequence. Lane testified that "the ledger board broke right on the knot," and the jury were warranted in finding that the knot was the cause of the ledger board's breaking.
Exceptions sustained.