217 Mass. 309 | Mass. | 1914
The plaintiff brings this action under the employers’ liability act for injuries suffered while he was working in the defendant’s lumber yard. At the time of the accident he and another employee, one Joseph Banville, with the aid of a derrick were engaged in lowering a heavy piece of timber from the top of a lumber pile. Banville had fastened the iron dogs on the timber, it had been raised from the pile by means of the derrick block and chain, and was being guided by the plaintiff over an adjoining pile of lumber, when Banville signalled with his hand to the engineer to lower it. In some way the plaintiff was struck by the timber and was thrown to the ground.
The chief, if not the only, question under the report is whether Banville was a person "who was entrusted with and was exercising superintendence and whose sole or principal duty was that of superintendence,” or was one who, “in the absence of such superintendent,” was “a person acting as superintendent with the authority or consent” of the employer. St. 1909, c. 514, § 127, cl. 2.
It was admitted that the plaintiff would have to obey the orders of the defendant’s regular superintendent and those of the salesman in charge of the job. It is not contended that the regular superintendent was in any way involved in the alleged cause of action. The salesman, at the time of the injury, was in the office, forty or fifty feet from the place where the accident occurred. He had sent the plaintiff to Banville, to help in getting out some heavy timber. The work required only the two men, — Banville, who attached the derrick chain to the timber, and the plaintiff, who guided the beam until it reached the place where it should be lowered. The engineer was in the hoisting house, about three hundred feet away. Apparently this work was not such as re
Nor does the evidence bring him within the “acting as superintendent” provision of the statute. At the time of the accident he was not acting temporarily as the substitute of the absent superintendent or salesman, but was doing his own ordinary work in the usual way. Carney v. A. B. Clark Co. 207 Mass. 200. Anderson v. Smith, ubi sufra.
In short, Banville was a fellow servant for whose negligence the defendant would not be responsible to the plaintiff. It is unnecessary then to consider whether the conduct of Banville at the time of the accident was in fact negligent, or whether that question is open under the terms of the report.
It is suggested in the plaintiff’s brief that the salesman could
Judgment for the defendant.