The temporary staging, provided for the use of the plaintiffs, collapsed because constructed of insufficient materials ; but under R. L. c. 106, § 71, cl. 1, it formed no part of the permanent “ ways, works or machinery ” of the defendant. Burns v. Washburn, 160 Mass. 457.
By the statute, the right of recovery, however, is not limited to injuries caused to employees by defective permanent appliances, but also embraces wrongs that may arise from negligence of the employer, or of those properly representing him, in directing an employee to use an unsafe appliance, even though it may be only of a temporary character. Arkerson v. Dennison, 117 Mass. 407. Ryan v. Tarbox, 135 Mass. 207. Haley v. Case, 142 Mass. 316. Ryalls v. Mechanics' Mills, 150 Mass. 190. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586.
The doctrine of exemption from liability of an employer who buys from reputable makers, for use in his business, a completed machine or other appliances which generally are recognized as being suitable, but prove to be unsound by reason of latent defects, has no application in the present case, as it appears from the evidence that upon a superficial examination the *340structural weakness of the staging could have been readily discovered. Roughan v. Boston & Lockport Block Co. 161 Mass. 24. Reynolds v. Merchants’ Woolen Co. 168 Mass. 501. See also Toy v. United States Cartridge Co. 159 Mass. 313, 315.
It also may be said that if sufficient and suitable materials had been provided by the defendant, and the plaintiffs in their own way had built the staging they were to use, the risk of defective construction would have been assumed by them. Colton v. Richards, 123 Mass. 484, 488. Reynolds v. Barnard, 168 Mass. 226. Thompson v. Worcester, 184 Mass. 354.
But being ignorant of its construction, or suitability, when directions were given, by a person entrusted with supervision, to use a completed staging, they had a right to rely on the presumption that their employer had performed its duty, with the implied assurance that the structure so furnished could be safely used. Connolly v. Waltham, 156 Mass. 368, 370. O’Driscoll v. Faxon, 156 Mass. 527. Brady v. Norcross, 172 Mass. 331, 333. Cunningham v. Atlas Tack Co. 187 Mass. 51.
In the discharge of this duty, the defendant’s liability was not limited alone to the actual knowledge of either its superintendent, or of an under foreman who acted as superintendent, that the staging was unsound. It included also responsibility for the negligence of the acting superintendent in not ascertaining that fact before directing the plaintiffs to use the staging, if by the exercise of due diligence on his part this condition, upon examination, would have been made known to him. Arkerson v. Dennison, Connolly v. Waltham, ubi supra.
Such an inquiry is a question of fact, and as the ruling requested by the defendant could not be given, both cases were rightly submitted to the jury with instructions that were sufficiently full.
A further exception is presented in the first case relating to the effect to be given to the admission of certain evidence.
After his injury the plaintiff Feeney became an inmate of a hospital which kept daily records of the medical treatment of its patients. Subject to his exception, and without the testimony of the person who made the entry concerning him, or that of any one properly charged with their custody, this entry was introduced in evidence by the defendant.
*341The exceptions are obscure as to the precise ground upon which at first the evidence was admitted. From the statement of the defendant’s counsel at the close of the instructions, it maybe assumed that the object was to affect the measure of damages by showing that the plaintiff had refused to submit himself to proper medical treatment, and insisted upon a different course being prescribed, and that no change being granted, he refused to remain, and left the hospital.
It further may be assumed from the instructions, that the plaintiff was a witness at the trial, and this testimony finally was-deemed admissible as in some manner tending to contradict him.
If for either purpose it was competent, the record did not prove itself, and therefore was inadmissible, without sufficient authentication, for reasons fully stated in the recent case of Cashin v. New York, New Haven, & Hartford Railroad, 185 Mass. 543, 546. At the time of admission no limitation appears to have been put upon the evidential scope of the record. Subsequently the presiding judge limited its effect as being in substance a declaration by the plaintiff that he did not desire to remain, or to submit himself to the proposed treatment.
Incompetent evidence, if admitted without objection, has the-same probative effect as if competent. Roberts v. Boston, 149 Mass. 346. Rapson v. Leighton, 187 Mass. 432, and cases cited on page 435.
But under our practice, when admitted as it was here, subject to the exception of the plaintiff, the subsequent ruling limiting its relevancy, to which the defendant excepted, was within the discretionary power of the trial court. Hawes v. Gustin, 2 Allen,, 402, 406. Eldridge v. Hawley, 115 Mass. 410, 412. Roberts v. Boston, ubi supra. Anthony v. Travis, 148 Mass. 53.
By the course pursued, the instructions given on this part of the case must be taken as expressing the final ruling, with the practical result that the defendant had a limited benefit of evidence that should have been entirely excluded. Because the original error was partially cured, it cannot now consistently complain that for this reason a new trial should be granted.
Bxceptions overruled.