[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 108 From the foregoing statement it will be observed that there was a disputed question of fact as to the proximate cause of the accident which resulted in the death of McDonnell. While the evidence adduced by the plaintiff is not as clear as it might be, due to the fact that the principal eye-witnesses of the accident were not familiar with the English language, still, the evidence of the witness Sernicola was clear to the effect that the "stiff leg" which was being put in place "turned around and the boom also and struck this other `stiff leg' and the whole thing fell." It was established by the evidence that the death of McDonnell was caused by his falling from the top of the mast and being struck by a piece of the "stiff leg." Evidence was also given by plaintiff that the "stiff leg" was broken, that the timber of the same was found to be soft and pulpy, contained dry rot, and was what is called "dead wood," and that the condition of the same would have been ascertained by inspection. *Page 110
As the plaintiff was entitled to the benefit of every fact that the jury could have found from the evidence, and to every legitimate inference therefrom, we are of the opinion that a question was fairly presented for the determination of a jury as to whether or not the defendant master had exercised ordinary care and diligence in providing the deceased with a reasonably safe place to work and in the proper inspection of the appliances and materials which defendant furnished plaintiff's intestate in the course of his employment, also as to whether or not the proximate cause of the injury was the breaking of the mast and "stiff leg" which was being put into place. For this reason the judgment should be reversed and a new trial ordered, costs to abide the event.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur; CHASE, J., dissents upon the ground that as matter of law it appears from the record now before us that the breaking of the "stiff leg" was not a proximate cause of the accident; COLLIN, J., absent.
Judgment reversed, etc.