209 Mass. 52 | Mass. | 1911
The first count of the declaration was waived and the case went to trial solely on the second.
The evidence tended to show that while the plaintiff, being in the employ of the defendant, was attempting to hitch a leading horse to a cart, and was in the act of coupling the whiffletree to the loop underneath the pole by means of a hook and chain, one Sullivan, who as the defendant’s servant was handling the reins, struck the horse with his whip, causing the horse to jump, by reason whereof the plaintiff’s right index finger was caught between the hook and the loop or ring and was crushed.
The question is whether the evidence would warrant a finding that for this act of Sullivan the defendant is answerable to the plaintiff. It is very plain he is not. Even if, without deciding, it be assumed in favor of the plaintiff that, in directing the plaintiff to hitch the horse to the pole, Sullivan was exercising a kind of superintendence, still it is perfectly obvious that he was not a person “whose sole or principal duty was that of superintendence.” See O'Neil v. O'Leary, 164 Mass. 387. Nor can it be said that he was a person who “ in the absence of such superintendent was acting as superintendent with the authority or consent ” of the defendant. Carney v. A. B. Clark Co. 207 Mass. 200. Dodd was the regular superintendent and was acting as such. He was not absent within the meaning of R. L. c. 106, § 71, cl. 2. If there was any negligence it was that of Sullivan, the plaintiff’s fellow servant, for which neither at com
Judgment for the defendant on the verdict.
