It was the duty of the defendant to use due care to see that the ladder was in a safe condition; and, while the plaintiff was not thereby relieved from taking proper care himself, still, in passing upon the degree of care required of him, it must be borne in mind that he had the right to assume that the duty had been performed. The ladder was there for use as a way of getting into the hold, and he saw in the hold men who, as he knew, had passed over it only a few minutes before. He was ordered to join them. Under these circumstances, and without stopping to make any particular examination, he began to descend. Even if the rung was bent, we cannot say that he was not in the exercise of due care. It was a question for the jury.
The question whether there was evidence of negligence of the defendant is more difficult. It is plain that at the time the plaintiff stepped upon the ladder it was in a defective and dangerous condition. It was in a vertical position and was from sixteen to eighteen feet in length. The rungs were fitted into holes in the uprights “ about three quarters of an inch ” deep, but do not seem to have been fastened to the uprights in any other way. There might therefore have been an opportunity for a rung, especially if it were a little short, to work sideways so that it could be pulled out. Should it come out while a person was using it for support, serious injury might happen to such person. The ladder was under the exclusive control of the defendant, and was unfit for the use for which it was intended. It *162does not appear that the defendant took any care of it whatever, except to see that it was there. The defect was not latent. The jury may well have found that while it was not visible to the eye, yet it could easily have been detected by touch, and that that was the only proper way to examine a ladder for such a defect. There was some evidence that the rung was bent, although one witness, called by the defendant, testified that he did not notice any bend in it, and the evidence as to the extent of the bend was very vague. The evidence as to whether the rung was handed to the defendant’s superintendent was conflicting, but it warranted a finding that it was handed to him, and the jury properly might have inferred that the defendant could have produced it at the trial and would have done so if its appearance would have helped the defence.
Considering the construction of the ladder, its defective condition, the ease with which the defect could have been detected by a proper examination, the entire lack of any inspection on the part of the defendant, the serious injury likely to happen to a servant through the instability of a rung and the fact that the ladder was under the exclusive control of the defendant, and considering further the evidence as to whether the displacement of the rung was due to its original length or to a shortening by reason of its being bent by contact with a tub or otherwise, taken in connection with the failure of the defendant, in whose possession the jury might have found the rung to be, to produce it at the trial, we are of opinion that the question whether the defect was of such a nature and had continued so long that the defendant was negligent in the discharge of its duty to the plaintiff was for the jury.
The exception taken by the defendant to certain evidence admitted during the cross-examination of the witness Driscoll is not noticed in the brief of the defendant, and in view of its nature we consider it waived.
Exceptions overruled.