GEORGE RASH vs. ANDREW I. ALBERT.

FIELD, J. In this action of tort for negligence a verdict for the plaintiff was returned by the jury, but in,accordance with leave reserved the judge ordered the entry of a verdict

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for the defendant. G. L. c. 231, § 120. The plaintiff excepted.

The plaintiff seeks to recover damages for injury to his left eye, alleged to have been caused by the collapse of a bridge across a stream in the town of Lanesborough, due to the negligence of the defendant. It appeared in evidence that the "road on both sides of the bridge was accepted by the town of Lanesborough, and the bridge was open and used freely by the general public." The residence of the plaintiff, a camp owned by the defendant "accommodating as many as five hundred guests," and about sixty cottages on the west shore of Pontoosuc Lake were reached by the road and bridge. In June, 1927, one bridge was removed and another built. The new bridge was five or more days in building. There was evidence that on June 29, the day after it was finished, it collapsed by reason of its defective construction, while the plaintiff, seated on a dump cart loaded with sand or gravel and drawn by two horses, was driving across it and that he lost the sight of his left eye. It is not contended that the plaintiff was negligent. The defendant, however, contends that the evidence did not warrant a finding that he was responsible for the collapse of the bridge or that its collapse caused the injury to the plaintiff's eye.

1. The evidence warranted a finding that the defendant was responsible for the collapse of the bridge.

In answer to interrogatories propounded by the plaintiff the defendant stated: "In conjunction with several neighbors we repaired this bridge. I did not help personally. Some of my men were asked to and did. This work was for the benefit of everybody living on the west shore . . . To the best of my recollection no one had charge of the work. All or several living on the west shore united to do it."

The plaintiff testified that after the accident he had a conversation with the defendant, in which the defendant asked the plaintiff who was to blame for the injury to his eye, and the plaintiff said, "I can't blame nobody but you. You was the one that put this new bridge in, or your help . . . I am going to sue you," and that the defendant said,

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"That's right. You sue me and then I'll whirl around and sue the town of Lanesborough."

There was evidence from which it could have been found that one Langworthy, who had charge of opening the defendant's camp, had charge of the construction of the bridge; that this was apparent to persons who saw the work being done - "he was . . . giving all the instructions"; that the men who worked on the bridge worked at the defendant's camp during the summer; that they were hurrying to finish building it before the opening of the camp, which was to take place in a few days, and that the defendant was present "once in a while during the progress of the work. One witness testified that he went to work for the defendant in June, 1927, and that his first work was in connection with building the new bridge under the direction of Langworthy. There was also testimony that a "lot of the neighbors" were working on the bridge and that Langworthy told the plaintiff that "if he, Rash, wanted to work for nothing he could."

A finding, therefore, was warranted that the new bridge was built by employees, or employees and neighbors, of the defendant under the direction of Langworthy, an employee of the defendant, and that defects in its construction causing its collapse were due to the negligence of Langworthy. A finding also was warranted that Langworthy in directing the building of the bridge was the agent of the defendant, acting within the scope of his employment. The defendant's answer to the plaintiff's interrogatory, that "we repaired this bridge," tended to show that his employees were working on it with his approval. The plaintiff, however, was not bound by the defendant's answers which were contradicted, such as the answer that "no one had charge of the work." Washburn v. R. F. Owens Co. 258 Mass. 446. The conversation between the plaintiff and the defendant after the accident was some evidence of an admission by the defendant of his responsibility for the defective condition of the bridge. It was at least equivocal. Commonwealth v. Helfman, 258 Mass. 410, 414-415 and cases cited. Carroll v. Carroll, 262 Mass. 10. See cases collected in 14 Mass. Law Quar. 62 et seq. This

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answer of the defendant and this evidence of admission by him, taken in connection with the evidence that Langworthy was employed to open the camp, that the time to open the camp was at hand, that it was to be reached by way of the bridge in question and that the defendant was present "once in a while" during the building of the bridge, when presumably he could have seen Langworthy in action, warranted the conclusion that Langworthy was acting for the defendant and that, through him, the defendant undertook to direct the construction of the bridge. It could have been found that this undertaking imposed upon the defendant a duty to exercise care which he failed to perform because of the negligence of Langworthy.

2. The evidence warranted a finding that the collapse of the bridge caused the injury to the plaintiff's eye.

The evidence tended to show that sand or gravel, with which the cart was loaded, went into the plaintiff's left eye, as well as his right eye, while he with the cart and horses was "in that hole" where the bridge collapsed. There was testimony to the effect that the bridge was about thirty-two feet long, that it began to settle when the horses were half way across it and fell when they were within three feet of the farther bank of the stream, that the plaintiff and the cart went down with the bridge while the horses were on planks of the bridge, which inclined toward the bank, and that the horses were "raring and tearing" when he unhitched them. He could not tell whether the sand or gravel went into his eyes "when the horses was going out or when the cart went down." Nor could he tell whether the sand or gravel went into his eyes because of some movement of the cart or of the horses or because of a rather high wind which was blowing. In spite of the uncertainty as to the precise time and way that the sand or gravel got into the plaintiff's eyes, we cannot say that it could not be found that the cause was the collapse of the bridge. Stevens v. Boxford, 10 Allen 25. Mooney v. Connecticut River Lumber Co. 154 Mass. 407, 409. Heuser v. Tileston & Hollingsworth Co. 230 Mass. 299, 302.

There was evidence that the plaintiff became "practically

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and permanently blind in the left eye." An eye specialist who saw him nine days after the collapse of the bridge, testified that the plaintiff had ulcer of the cornea of the left eye, that the plaintiff told him that gravel "hit him in the eyes" and that "probably the blow originally caused damage to the tissues, then the ulcer resulted," but that such an ulcer "may be produced in various ways." On this evidence and the other testimony in the case, it could have been found that the condition of the plaintiff's left eye was caused by sand or gravel which went into it when the bridge collapsed. The plaintiff "was not required to exclude all other possibilities as to the cause of the injury if by a preponderance of evidence he proved that it was caused by the defendant's negligence." Navien v. Cohen, 268 Mass. 427, 431, and cases cited. We cannot say that the plaintiff has not made this proof. The cause of his injury was not purely conjectural. The evidence in this case goes beyond that in Green's Case, 266 Mass. 355, relied on by the defendant, for here a physician testified to his opinion as to the cause of the injury.

Exceptions sustained.

Original verdict of jury to stand.

Judgment for plaintiff on that verdict.