186 Mass. 572 | Mass. | 1904
The plaintiff’s intestate was hurt by reason of the slipping of a ladder. At the time he and one other person only were at work and the particular tiding then in hand was the nailing of a cleat upon a ladder which they were to use in painting a roof. He was upon the ladder nailing the cleat, and the other person was holding the foot of the ladder. Both of these
The case was tried upon one count only, for negligence of a superintendent under the employers’ liability act. The count alleged that the plaintiff’s intestate by the direction of Donovan was engaged in fastening a cleat upon a ladder which Donovan undertook to steady and hold while the plaintiff’s intestate was at work upon it, and that Donovan carelessly released his hold upon the ladder and allowed it to slip.
At the close of the evidence a verdict for the defendant was directed, and the case is before us upon a report.
We do not consider whether upon the evidence Donovan could be found to be a superintendent within the meaning of the statute. See Adasken v. Gilbert, 165 Mass. 443. Although in charge of the job, he was expected to work as a painter. He was mixing paint when the plaintiff’s intestate arrived. On other jobs for the same employer although Donovan gave instructions he worked by the side of the other painters, beginning work at the same time with the other men, working the same hours, taking his place beside them on ladder or staging and painting with them whenever there was room. Whether his wages were higher does not appear. We think the verdict for the defendant was ordered rightly because Donovan’s act in re
The work of arranging and putting in place ladders and stagings for doing outside painting, proper appliances and materials being furnished by the employer, is ordinarily the concern of the workmen themselves. Here there were two men who were expected to do the same kind of manual labor. The employer himself was absent and had given no directions about ladders or stagings, leaving his employees to arrange them for themselves. Where one person acts both as a common laborer and a boss, and is expected to work with and as the other workmen, even his words of command are not necessarily acts of superintendence. See Whittaker v. Bent, 167 Mass. 588. We think that the act of Donovan in attempting to hold the ladder and letting it slip was not an act of superintendence but of simple manual labor. See Riou v. Rockport Granite Co. 171 Mass. 162; Flynn v. Boston Electric Light Co. 171 Mass. 395. The plaintiff’s allegation is that Donovan carelessly and negligently released his hold and let the ladder slip, — not that he misjudged his strength or the strain which might come upon it. Therefore there was nothing to show that the order given by Donovan was negligent or his plan defective, so as to bring his own manual labor within the statute as an act of superintendence. See Joseph v. George G. Whitney Co. 177 Mass. 176; Gibson v. International Trust Co., ante, 454.
Judgment on the verdict.