207 Mass. 200 | Mass. | 1911
The plaintiff, with Cleveland and Machury, all being employees of the defendant, were laying “ paroid ” paper on the roof of one of the defendant’s buildings. The building, which was two hundred feet long, had a pitched roof, and its eaves were fifty feet above the ground. The work was begun at the ridge pole, parallel with which the paper was laid in strips three feet wide. While the men were standing upon a bracket staging a few feet below the eaves, engaged in laying the lower strip, a gust of wind tore the paper from the hands of the other two men stationed one at each end, wrapped the paper around the plaintiff, who was stationed between the two, and hurled him to the ground.
The due care of the plaintiff is admitted. There was evidence that Cleveland ordered that this last strip of paper should not be temporarily tacked to the roof as it was unrolled, and that he had authority to give such an order. In view of the evidence as to the giving of the order, as to the velocity of the wind, the
The only remaining question is whether the relations of the defendant to Cleveland and to the plaintiff were such as to make the defendant answerable for this negligence, or in other words whether the order of Cleveland was in law the order of the defendant.
The plaintiff relies upon E. L. c. 106, § 71, cl. ,2, which holds an employer responsible to a careful employee for (1) “ the negligence of a person in the service of the employer who was entrusted with and was exercising superintendence, or (2) in the absence of such superintendent, of a person acting as superintendent with the authority or consent of such employer.” It is plain that the plaintiff cannot stand upon the first part of the clause. There was no evidence which would justify a finding that Cleveland was a person whose sole or principal duty was that of superintendence. It certainly was not his sole duty, and even upon the plaintiff’s own testimony it was not his principal duty. In this respect the case must be regarded as one of the class of which O’Neil v. O’Leary, 164 Mass. 387, is a type.
Can the plaintiff stand upon the second part of that clause ? This leads to an inquiry as to the meaning of that part. By a series of decisions beginning with Harwell v. Boston Worcester Railroad, 4 Met. 49, it has been constantly held by this court that by the common law of this State an employer who uses due diligence in the selection of competent and trustworthy employees and in the furnishing of proper tools and appliances is not answerable to one employee for the carelessness of another when both are engaged in the same service, or, more tersely stated, that the master is not responsible to one servant for the carelessness of a fellow servant. And this is so even although the negligent employee is a superintendent, or foreman acting within his sphere as such. Albro v. Agawam Canal Co. 6 Cush. 75. O’Connor v. Roberts, 120 Mass. 227. St. 1887, c. 270, however
What is the effect of this amendment ? It may be suggested that its effect is to hold every employer liable, provided that with his authority or consent the negligent employee be acting as superintendent, entirely irrespective of the question whether or not superintendence be his sole or principal duty. If this be the meaning of the amendment, there was no necessity for retaining the first part of the clause; and the plain and obvious course would have been to strike out the second clause as it originally stood and substitute in its place the words constituting the amendment. It may also be suggested that its effect was to hold the employer liable for the negligence of a person acting as a temporary substitute for a superintendent whose sole or principal duty was that of superintendence, but only in cases where the substitute himself is a person whose sole or principal duty is that of superintendence. If this be its meaning, then the amendment was useless because it made no change. Neither one of these interpretations therefore seems satisfactory. The statute as amended should, if it be reasonably practicable so to do, be so construed as to give effect to every part of it, as well that part which was allowed to stand as that part which was added.
There is no difficulty in placing such an interpretation upon it. As the clause was originally drawn, the negligent employee must have been a person whose sole or principal duty was that
In this opinion the true construction, although not explicitly stated in full, is still clearly indicated. In an action under this
In the case before us the defendant cannot be held upon the ground that Cleveland’s principal .duty was that of superintendence. O’Neil v. O'Leary, 164 Mass. 387, and cases cited. But we think there was evidence that the work of papering the roof was under the general superintendence of Clark, and that his sole or principal duty was that of superintendence and that by the authority and consent of the defendant acting through Clark, its chief executive officer, Cleveland was acting as the foreman or superintendent of this work in the absence of the general superintendent. Under these findings the case comes within the last half of the clause in question, Knight v. Overman Wheel Co. 174 Mass. 455, and should have been submitted to the jury.
Exceptions sustained.