Coös,

Dec., 1900.

#### Matthews *v.*Clough.

If an injury to a servant results from tlie co-operating negligence of a fellow-servant and tlie master, the latter is liable therefor.

Where instructions to the jury present conflicting propositions of law, a failure to point out the inconsistency at the trial is a waiver of the right to insist upon it as a ground of exception.

Case, by an employee, for injuries caused by negligence in not furnishing suitable materials for a staging: Verdict for the defendant. The plaintiff, while in the employ of the defendant, assisted ha erecting a staging by the side of a building owned by her. He sawed putlogs from lumber obtained from portions of a building that had been taken down, and handed them to fellow-workmen, who put. them in place and nailed them. Subsequently, while the plaintiff Avas upon the staging, one of the putlogs broke and caused an injury to him. The defendant’s eAddence tended to prove that the putlog was improperly nailed.

The jury were instructed, among other things, as follows: “ It has been said that was due to the- carelessness of a fellow-servant; that somebody else nailed this board [putlog] as it ought not to have been nailed. If you find the injury Avas due to the Avay the board was nailed,— that the board Avas reasonably safe and would not have broken under the circumstances if it had been properly nailed,— the plaintiff has no remedy against the defendant. If you find the accident was partially due to the board being insufficient, provided the defendant was negligent in not furnishing reasonably suitable materials for a staging, and partially due to its being improperly nailed, the plaintiff would be entitled to recover.” Subject to the plaintiff’s exception, the jury were further *601instructed: “If you find tills board would liave field if it bad been properly nailed, the plaintiff cannot recover.”

*Fletcher Ladd*and *Chamberlin & Rich,*for tfie plaintiff.

Lreiv, *Jordan & Buckley,*for tfie defendant.

Chase, J.

Tfie master is liable for an injury to fiis servant caused by negligence of tfie master co-operating with, negligence of a fellow-servant, tfie injured servant being in no fault. *Paulmier*v. *Railroad,*34 N. J. Law 151; *Morrisey*v. *Hughes,*65 Vt. 553; *Cone*v. *Railroad,*81 N. Y. *206; Norfolk & Western R. R.*v. *Nuckols,*91 Va. 193; *Grand Trunk R'y*v. *Cummings,*106 U. S. 700; *Cayzer v. Taylor,*10 Gray 274; *Clark*v. *Soule,*137 Mass. 380; 2 Shearm. & Red. Neg. (5th ed.), *s.*188.

This principle seems to have been stated to tfie jury in tfie first instance in a form that was satisfactory to tfie plaintiff, as lie took no exception to that portion of the instructions; but fie says tfie proposition, that the plaintiff could not recover if the putlog would have field in case it had been properly nailed, conflicts with the principle and was erroneous. Tins position arises from considering tfie proposition independently of its connections and con.struing it literally. When it is considered in connection with tfie other portions of the charge, it appears to be but a restatement of the idea that if tfie breaking of the putlog was due to tfie manner in which it was nailed, and not to its insufficiency, the plaintiff could not recover. If the plaintiff had any doubt on this point, fie should have brought it specially to tfie attention of the court. It is not to be presumed that tfie court would intentionally present conflicting propositions of law to tfie jury. If fie had understood that tfie plaintiff believed this had been done, or that tfie instructions were liable to such interpretation, no doubt such change in tfie form would have been made as to remove all possibility of reasonable objection on that ground. If tfie plaintiff believed there were conflicting propositions in tfie charge, fie was not at liberty to sit by and take tfie chance of winning upon tfie proposition that was favorable to him, without also taking tfie risk of being defeated upon tfie proposition that was unfavorable to him. If fie wished to-avoid taking tfie risk, it was fiis duty to specially point out tfie inconsistency so that it might be remedied. Fairness and justice demanded this course. As fie failed to do so, he waived tfie right to insist upon the inconsistency as a ground of exception. “A general objection will be insufficient where tfie .special point of tfie objection insisted upon is such that, if it had been specifically pointed out at tfie trial, it might have been obvi*602ated, or where the general objection was calculated to divert the-attention from the special objection on which the party intended to rely.” *Hayward*v. *Bath,*38 N. H. 179, 183; *Haines*v. *Company,*59 N. H. 199; *Emery*v. *Railroad,*67 N. H. 434, 435.

*..Exception overruled,.*

Pike, J., did not sit: the others concurred.