| Mass. | Jan 7, 1909
These actions of tort were tried together, and a verdict having been ordered in favor of both defendants the cases are before us on a single bill of exceptions. The pleadings contain two counts at common law and two under the statute, but, as the plaintiff relied only upon the third count charging negligence of some person intrusted by the defendants with superintendence, the other counts are immaterial. The question for decision is whether there was any evidence which would warrant a verdict for the plaintiff against either or both defendants.
Independently of the inquiry as to which one of the two was his master at the time of the accident, each defendant contends that the plaintiff was not in the exercise of due care, and that he assumed the risk. But his general employment had been that of a machinist’s helper, and he never had worked in the manner described in hoisting into place heavy castings while setting up a stationary steam engine. If, in connection with his inexperience in this particular line of service, there is taken into consideration the additional facts, that the work was done under the immediate supervision of a person who could have been found to have been acting as superintendent, and that when directed to pull upon the chain falls he had the right to rely upon the presumption that sufficient precaution had been taken to prevent the casting, or section of the fly wheel, as it rose from the ground from swinging in too quickly as it was lowered into final position, the jury could find, that, being at work in his appointed place under the eye of his master’s representative, he was not guilty of contributory negligence, if he failed to appreciate fully the danger that his fellow servant in charge of the guy rope might be unable to prevent the rope from slipping and the load from swinging so rapidly forward as to strike him. Feeney v. York Manuf. Co. 189 Mass. 336" court="Mass." date_filed="1905-10-19" href="https://app.midpage.ai/document/feeney-v-york-manufacturing-co-6429103?utm_source=webapp" opinion_id="6429103">189 Mass. 336. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586" court="Mass." date_filed="1905-04-03" href="https://app.midpage.ai/document/meagher-v-crawford-laundry-machinery-co-6428862?utm_source=webapp" opinion_id="6428862">187 Mass. 586, 589, and cases cited. Connolly v. Booth, 198 Mass. 577" court="Mass." date_filed="1908-05-20" href="https://app.midpage.ai/document/connolly-v-booth-6430277?utm_source=webapp" opinion_id="6430277">198 Mass. 577. Robertson v. Hersey, 198 Mass. 528" court="Mass." date_filed="1908-05-20" href="https://app.midpage.ai/document/robertson-v-hersey-6430265?utm_source=webapp" opinion_id="6430265">198 Mass. 528.
But, if this was sufficient to require the submission of this issue to the jury under the decisions in Reardon v. Byrne, 195 Mass. 146" court="Mass." date_filed="1907-04-02" href="https://app.midpage.ai/document/reardon-v-byrne-6429834?utm_source=webapp" opinion_id="6429834">195 Mass. 146, and Connolly v. Booth, 198 Mass. 577" court="Mass." date_filed="1908-05-20" href="https://app.midpage.ai/document/connolly-v-booth-6430277?utm_source=webapp" opinion_id="6430277">198 Mass. 577, and the cases there cited, and Di Bari v. J. W. Bishop Co. 199 Mass. 254" court="Mass." date_filed="1908-06-15" href="https://app.midpage.ai/document/di-bari-v-j-w-bishop-co-6430320?utm_source=webapp" opinion_id="6430320">199 Mass. 254, and Hines v. Stanley G. I. Electric Manuf. Co. 199 Mass. 522" court="Mass." date_filed="1908-10-19" href="https://app.midpage.ai/document/hines-v-stanley-g-i-electric-manufacturing-co-6430372?utm_source=webapp" opinion_id="6430372">199 Mass. 522, we are brought to the further question, in whose service was the plaintiff employed when injured. It was part of its contract, that the Fitchburg Steam Engine Company should set up, connect and “ turn over ” the engine in running order. In performance of this part of the contract, it sent Daniels. Upon the uncontradicted evidence he was there and was acting not as the representative of the vendee but of the vendor. In the prosecution of the work, he alone gave the necessary orders, which were obeyed by the men, including the plaintiff, all of whom had been furnished by the vendee. He was vested with the power of control, and the scope of his authority included everything which properly might be required for the installation of the engine, even if his expenses were to be borne by the Coffin Valve Company, which also was to furnish at its own expense such “ laboring help as
But, if the case against this company should have been submitted to the jury, it does not follow that a verdict in favor of the Coffin Valve Company was ordered rightly. This defendant rested on the testimony offered by the plaintiff. The contract had not been put in evidence, and no discussion is called for to make plain what is evident upon the record, that, as the case then stood, the jury could have found that Daniels was in its service, and had been intrusted with superintendence. Feeney v. York Manuf. Co. 189 Mass. 336" court="Mass." date_filed="1905-10-19" href="https://app.midpage.ai/document/feeney-v-york-manufacturing-co-6429103?utm_source=webapp" opinion_id="6429103">189 Mass. 336. Murphy v. New York, New Haven, & Hartford Railroad, 187 Mass. 18" court="Mass." date_filed="1904-11-22" href="https://app.midpage.ai/document/murphy-v-new-york-new-haven--hartford-railroad-6428718?utm_source=webapp" opinion_id="6428718">187 Mass. 18, 21. Baldwin v. American Writing Paper Co. 196 Mass. 402" court="Mass." date_filed="1907-10-18" href="https://app.midpage.ai/document/baldwin-v-american-writing-paper-co-6430004?utm_source=webapp" opinion_id="6430004">196 Mass. 402, 408. The verdict, therefore, as to this defendant also must be set aside, and, as there must be a new trial, the exceptions to the exclusion of the question asked of the plaintiff’s expert should be. considered. The inquiry of fact was whether one man at the rope would be sufficient to prevent the casting, as it was being raised into position, from too rapidly swinging in toward the base where it was to rest. While it might have been admitted in the discretion of the presiding judge, if he thought the jury would be aided by the expert’s opinion, yet, from their common knowledge of what at most was a simple mechanical operation not involving technical skill, they were fully competent to decide this for themselves.
Exceptions sustained.