In an action by a laborer to recover from his employer for injuries caused by the negligence of the defendant's superintendent, it appeared that the superintendent employed the plaintiff to assist in delivering grain, that the plaintiff and the superintendent examined a bin in which the plaintiff was to work, that it was dark, and, on the plaintiff saying that he could not see the bottom of the bin, the superintendent told him that it was all right and to come away, and afterwards ordered him to get into the bin and go to work, that the plaintiff did so, and instead of landing on a floor or bottom of the bin fell astride a joist and was injured. Held, that the jury were justified in finding, that the plaintiff was in the exercise of due care, and that the superintendent was negligent in ordering the plaintiff into the bin.
BARKER, J.
The court below was right in refusing to order a verdict for the defendant. The assurance of the superintendent that the bin was all right when he and the plaintiff were examining the bin, coupled with the order to come away from it, and the subsequent order for the plaintiff to get into the bin, justified a finding that the plaintiff was in the exercise of due care, and that the superintendent was negligent in ordering the plaintiff into the bin.
The contention that the plaintiff could not avail himself of the superintendent's statement that the bin was all right, because it was not alleged in the declaration, is not shown to have been made at the trial, and is not open.
Exceptions overruled.