| Mass. | Dec 28, 1911
Even if it be assumed in favor of the plaintiff that the questions whether he was careful, whether the temporary absence of the guard was the proximate cause of the injury and whether there had been a sufficient compliance with the statutory requirements as to the time, place and cause of the injury were for the jury, there was still a fatal defect in his case. There was no evidence of any neglect for which the defendant is answerable.
Ho case was made out on the ground that at the time of the accident the machine was defective. The only trouble at the time of the accident was that the guard was not in place. It appeared that one Tower had taken off the guard for the purpose of cutting off the laps of silk which were clogging the rollers, and after he had removed the silk had failed to replace the guard. Tower was a superintendent, but we are of opinion that these were not acts of superintendence. In deciding to clear the machine at that time there was no negligence. It was
Nor can the words “ It is' all right, go ahead ” be regarded as words of command under the circumstances. They were a part of Tower’s work as a fellow workman. As stated by Holmes, J., in a similar case, they are “ merely the assurance, in a customary colloquial form, of the fellow workman . . . [who had done the work] . . . that all was safe.” Whittaker v. Bent, 167 Mass. 588" court="Mass." date_filed="1897-02-25" href="https://app.midpage.ai/document/whittaker-v-bent-6425874?utm_source=webapp" opinion_id="6425874">167 Mass. 588, 590. See also McDonnell v. New York, New Haven, & Hartford Railroad, 192 Mass. 538" court="Mass." date_filed="1906-09-05" href="https://app.midpage.ai/document/mcdonnell-v-new-york-new-haven--hartford-railroad-6429525?utm_source=webapp" opinion_id="6429525">192 Mass. 538. In no act of superintendence is Tower shown to have been negligent.
Exceptions overruled.