When, this case was before us upon exceptions taken by the defendant at a former trial, in which the plaintiff obtained a verdict upon the count at common law, it was said that, even if the breaking of the bracket was of itself evidence of negligence in the construction of the staging on the part of some one, it was not evidence from which it could fairly be inferred that the negligence was that of the employers. And the *449following language was used by Barker, J.: “ The evidence did not tend to show that they [the employers] furnished the staging as a structure, nor that they assumed to exercise any control or supervision as to how it should be built or kept or adapted for the work, nor that they failed to furnish a sufficient quantity of Suitable materials, nor that they employed improper workmen.” And the exceptions were sustained. Brady v. Norcross, 172 Mass. 331, 336. The case is now before us upon exceptions taken by the-defendant at the second trial, in which the plaintiff obtained a verdict upon the first count in the declaration, which is based upon the employers’ liability act. St. 1887, c. 270.
Without reciting the evidence in detail, it is sufficient to say that the questions whether the plaintiff was in the exercise of due care, whether there was negligence in the care of the staging, whether that negligence, if any, was attributable either to Douglass or to Smith, and whether either or both of them was a person whose chief duty was that of superintendence, and to whom as a part of that duty the care of this staging was intrusted by the defendant, seem to us to be upon the evidence questions of fact for the jury, and not of law for the court.
As the case went to the jury only on the first count, the first and second requests were substantially the same. They were properly refused, as was also the fourth.
Nor could it be said that, if the weight of the plaintiff and his •fellow workmen, Knight and Remilly, caused the bracket to break, the plaintiff could not recover. All that was for the jury to consider in connection with the other evidence.
The instructions of the court as to the matter of the fifth request were sufficiently favorable to the defendant.
We see no error in the manner in which the court dealt with the defendant’s requests.
The conversation between Douglass and Smith tended to show that each had notice of the condition of the stage, and it was admissible to show such notice.
It was within the discretion of the court to allow Douglass to testify that in his judgment the cutting of the upright would have a tendency to weaken the stage, and also as to the persons from whom he received orders.
Exceptions overruled.