194 Mass. 386 | Mass. | 1907
We think that there was evidence warranting a finding that the plaintiff was in the exercise of due care and that the accident was due to a negligent act of superintendence on the part of Murray. It could have been found, and for aught that appears it was found, that in taking an iron bar and prying the timbers apart the plaintiff was engaged in the performance of work which he was hired to do, and that he had no reason to suppose that Murray would start the horse or that the horse
The exceptions recite that it was admitted that Murray was “ a superintendent within the meaning of the employers’ liability act.” There was evidence tending to show that Murray directed the plaintiff to unhitch the horse from the wagon so as to haul the timber up to the house and directed one of the men to make fast to the timber, which he did, and that the plaintiff thereupon hitched on to the timber and started the horse, but the chain slipped, and as he was in the act of prying the timbers apart so as to make it easier for the horse to pull the timber, Murray took hold of the horse’s head and started it up causing the injury complained of. It is plain we think that Murray’s act in starting up the horse was or could have been found to be done as an act of superintendence for the purpose of assisting in doing what as superintendent he had directed to be done, and therefore to derive its quality not from the mere act of manual labor which was necessary in starting the horse, but from the exercise of the controlling authority which he had as superintendent. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586. McPhee v. New England Structural Co. 188 Mass. 141. Whether there was negligence on Murray’s part was clearly for the jury. It follows that the rulings that were requested were rightly refused.
Exceptions overruled.