Exceptions sustained. This is an action of tort to recover damages for the death and conscious suffering of the plaintiff's intestate resulting from a fall on a common stairway of the defendants' multiple dwelling house. The case is here upon the defendants' exceptions to the trial judge's instructions to the jury and his refusal to give further instructions requested by the defendants. There are four such issues. 1. The judge charged the jury that "The number of steps isn't very material" and the judge refused to charge as requested that "If you find . . . [the plaintiff's intestate] fell from the top then there can be no recovery as there is nothing to warrant a finding of a defect at the top of the stairs." 2. The judge's remark to the jury regarding the absence of a doctor summonsed by the defendants and the judge's refusal to rule that there was no basis for the jury to draw any adverse inferences because the doctor was not present to testify. 3. The judge's instructions to the jury pertaining to the defendants' duty of care. 4. The judge's instructions on damages for death. The plaintiff concedes that with reference to the issue numbered 4 the judge was in error but contends that this error "does not injuriously affect the substantial rights of the defendants." The legal principles involved in these issues have been stated in many decisions of this court and require no elaboration.
Decree affirmed. The employee was a truck driver who found himself locked in his employer's building at the end of a day's work. He tried several doors without success and finally noticed an open window with a ledge below it on the second floor. Stepping through the window and down onto the ledge, he proceeded to hang from the ledge by his hands and drop to the ground. He landed hard on his heels and sustained severe fractures of both ankles. The single member found that while the employee may have demonstrated poor judgment, he had been of the opinion that he had only a four foot
jump to negotiate, "which he felt he could manage," and that his injuries arose out of and in the course of his employment. The reviewing board adopted the findings of the single member in awarding workmen's compensation to the employee. The Superior Court entered a final decree in his favor. The record supports the finding of no serious or wilful misconduct in the fall of the employee. The decision of the single member had ample warrant on principles which have been repeatedly stated. See Baran's Case, 336 Mass. 342 ; Vaz's Case, 342 Mass. 495 , 498. Costs under G. L. c. 152, Section 11A, shall be allowed by the single justice.