Igo v. Boston Elevated Railway Co.

204 Mass. 197 | Mass. | 1910

Sheldon, J.

Upon the facts stated by the plaintiff’s counsel in opening, we are of opinion that the jury would have been warranted in finding that Lynch was a superintendent in the employ of the defendant within the meaning of E. L. c. 106, § 71, cl. 2, now contained in St. 1909, c. 514, § 127, cl. 2, and that the injury to the plaintiff resulted from Lynch’s negligence. This negligence, the jury might have found, consisted in determining to use a carriage bolt upon the fender as a rivet, a purpose for which it was unfit and for which Lynch should have known that it was unfit. They also might have found that he was negligent in subsequently determining, after this bolt had been hammered and its material thus had been made harder and more brittle, to cut off the head of the bolt with a cutter, in the .manner and with a tool which properly could have been used if he had been dealing with a rivet, but which could not be used safely upon the head of a carriage bolt which had been thus hardened and rendered brittle. This negligence would be the negligence of a superintendent, acting as such, for which the defendant would be liable under the statute already referred to. Shannon v. Shaw, 201 Mass. 393, 396. Coates v. Soley, 194 Mass. 386. Hourigan v. Boston Elevated Railway, 193 Mass. 495, 498. Meagher v. Crawford Laundry Machine Co. 187 Mass. 586. It could be found that his negligence was not in carelessly executing the plan which he had formed, as in Sarrisin v. S. Slater & Sons, 203 Mass. 258, and other cases relied on by the defendant, but, as in the cases above cited, in the adoption of a plan which the jury could find to have been negligently adopted. Silvia v. New York, New Haven, & Hartford Railroad, 203 Mass. 519. His failure to warn the plaintiff of the increased risks caused by the course adopted also might be found to have been negligence for which the defendant would be liable.

In view of the plaintiff’s ignorance of the dangers to which he was exposed by the course taken by Lynch, and of the fact, asserted by him, that he claims to have followed exactly the orders given to him by Lynch, the jury could have found that he was in the exercise of due care and had not assumed the risk of the accident which happened. The considerations urged by the defendant as to these questions are rather for the jury than for the court. O'Toole v. Pruyn, 201 Mass. 126.

We think it plain from the bill of exceptions, including what took place between the judge and the plaintiff’s counsel as well as what was said by the judge to the jury, that the verdict for the defendant was not ordered by reason of the failure of the plaintiff’s counsel to offer to show that notice had been given to the defendant in accordance with the provisions of R. L. c. 106, § 75. The bill of exceptions shows that the giving of such a notice was averred in the second count. It was agreed at the argument that the first count contained a similar averment. No question as to the proof of this averment seems to have been made at the trial. The judge, though he stated fully his reasons for ordering a verdict for the defendant, did not advert to this matter. A new trial ought not now to be refused for this reason.

For similar reasons we think that the second count of the declaration should have been submitted to the jury.

Accordingly we are of opinion that the defendant is not entitled to retain the general verdict which was ordered in its favor. But we are also of opinion that no right was shown to hold the defendant under the third count of the declaration. Incompetence cannot be inferred from a single act of negligence. Ettore v. Swingle, 183 Mass. 194. But if we treat the general statement in the plaintiff’s offer of proof that Lynch was incompetent as sufficient, there was yet nothing to show that the defendant knew or ought to have known of this incompetence and so was negligent in employing him as superintendent, or that the injury to the plaintiff was due to such incompetence. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11, 14, 15. Gilman v. Eastern Railroad, 10 Allen, 233, 238, and 13 Allen, 433, 440.

The plaintiff’s exceptions must be sustained as to his first and second counts, and a new trial must be had upon those counts only.

So ordered.