I agree with my brother Hooker that the maxim res ipsa loguitur may be applied to the fall of the structure which caused the plaintiff’s injuries. The section which fell was entirely independent of the one which had just been taken down. The plaintiff had just gone upon it and had not begun to take it down, but I do not'think *590it is necessary to rely upon the maxim. It is in evidence that shortly after the- collapse of the structure a joist was discovered in the debris broken in two at a point where a hole had. been bored to ■ admit the passage of a pipe, leaving only, a narrow rim of wood- I think a jury would have the right to infer that the structure collapsed because of the weakened joist (it.was thirteen to fourteen feet long,'unsupported except by the beams at either, end), and we are.now testing.a dismissal of the complaint. The structure had been used as a scaffold by the steamfitters and plasterers, and the plaintiff had a right to. assume, when he was directed to go upon it by the superintendent, that it was safe. I think the plaintiff had a right to go to the jnry upon the question of the negligence of the superintendent (the case is brought under the Employers’ Liability Act*) in sending the plaintiff upon this weak structure without warning him. The fact is proven that the joists were visible from below, and the superintendent himself testified that the structure “was not a very strong construction.” He says he warned the men to be careful because of that fact, but this was for the jury. I think the jury could have found from the evidence that the defendants’ superintendent sent the plaintiff upon a structure which he knew to be dangerous, without giving any warning of the danger. - If so, it was error to dismiss the complaint.
Laws of 1902, chap. 600.-— [Rep.