Noyes

This is an action to recover damages for personal injuries received by plaintiff while in the employ of defendants.

It is charged in the complaint that defendants employed plaintiff as a journeyman painter, to assist in *392 painting a barn, which defendants had contracted with the owner, Mr. Pierce, to paint. That it became the duty of defendants, as his employers, to furnish ladders to be used in the work, and that they furnished ladders which were too short to enable him to perform the work, and therefore defendants erected a scaffold and placed a short ladder upon it. That through the negligence of the defendants the scaffold was defective, insufficient, and insecure, whereby plaintiff was injured.

Verdict and judgment were entered for plaintiff, and thereupon defendants moved for a new trial, specifying many respects in which they claimed that the evidence was insufficient, as also several alleged errors occurring on the trial. A new trial was granted, and from the order plaintiff appeals.

In the order granting a new trial the judge stated that the motion was granted “on the sole ground that the evidence does not show that said Wayne was a foreman or vice-principal, but…