Negligence, Res ipsa loquitur, Employer's liability. The fact, that a brick wall of the cellar of a house that was being pulled down fell on a workman as he was passing near it in the course of his employment, is not in itself evidence of negligence on the part of the contractor who was engaged in pulling down the house.
In an action of tort by an administrator under the employers' liability act for injuries to the plaintiff's intestate alleged to have been caused by the negligence of one whose sole or principal duty was that of superintendence, the mere facts that a certain person, whom the plaintiff's intestate called the foreman, gave orders to one other man who was working with him, that the intestate was ordered by the defendant to report to this person and did so and was sent by this person to the place where the accident occurred, are not evidence that superintendence was this person's sole or principal duty, where there is no other evidence which tends to show that such was the case.
HAMMOND, J.
1. So far as respects the count at common law, the plaintiff failed to show negligence of the defendant. He was not personally present, and there is no evidence that the work was improperly done in any respect, or that suitable means of prosecuting it were not at all times provided, or that proper workmen were not employed. Nor is the doctrine of res ipsa loquitur applicable. The workmen were engaged not in putting up the wall, but in tearing it down; and under such circumstances the fact that finally the wall came down is not of itself evidence of negligence.
2. So far as respects the second count, alleging negligence of one whose sole or principal duty was that of superintendence, it is sufficient to say that even if Scanlan is shown to have been in a certain sense a foreman there is not the slightest evidence that superintendence was his sole or principal duty. On the contrary the evidence, so far as it has any bearing, seems to point the other way.
Exceptions overruled.