Jordan v. New England Structural Co., 197 Mass. 43

Jordan v. New England Structural Co.

197 Mass. 43 | Mass. | 1907

Knowlton, C. J.

These two cases were brought under the employers’ liability act, the first by a minor, to recover damages for personal injuries received through the negligence of the defendant’s superintendent, and the second by the minor’s father, to recover for loss of services of the son, and for the expenses of his medical attendance rendered necessary by the accident.

In the defendant’s shop there was a large crane, estimated to weigh about twenty tons, which passed in and out upon an iron track nearly twenty feet above the ground, which track was supported by girders. The track and girders were taken down and replaced by new ones. While the work was going on and before the <old track was entirely removed, the crane ran in and *45out over that part which was in position, and as soon as the new track was in place and safely supported it began to run in and out occasionally over that. The minor plaintiff was an iron worker. He was sent with another man to put a bracket underneath the girder, between the pillars that supported it, and in doing the work he stood upon a narrow piece of iron and steadied himself by taking hold of the track above the girder with one hand. His companion went away temporarily, and one Flynn, a foreman who directed the work, came up to take his place, standing in a similar way, with one of his hands holding the rail of the track. The crane came along over the track and cut off the ends of two of the plaintiff’s fingers.

There was ample evidence to warrant a finding that Flynn was a superintendent within the meaning of the statute. The jury well might find that it was a part of his duty to warn workmen, who were in exposed positions, of the coming of the crane, if they were where they would not be likely to see it. There was testimony that he had given such warnings repeatedly during the progress of the work. It appeared that the place was very noisy, and that the plaintiff could not hear nor see the approach of the crane while he was working below the girder. His back was toward the crane as it approached, while the superintendent was facing it. There was testimony that the superintendent could have seen the crane as it was coming, although this was disputed. The superintendent was not relieved from the obligation to use due care for the safety of the employees by his taking the place of the plaintiff’s companion, temporarily, to assist in the work of putting in the bracket. It was a question for the jury whether the superintendent was negligent in failing to discover the approach of the crane and to warn the plaintiff of his danger. It was also a question for the jury whether the plaintiff was in the exercise of due care. In this case the defendant’s exceptions must be overruled.

The case of the father presents a different question. This, like the other, is brought under the employers’ liability act, and no negligence is charged except that of the superintendent. At common law neither of the plaintiffs could recover, as the only negligence complained of was that of a fellow servant. The employers’ liability act cannot be availed of by the father to recover *46for loss of service or for expenses, inasmuch as this statute gives a right of action only to the employee or his legal representatives, or, if he is instantly killed or dies without conscious suffering, to his widow or next of kin. R. L. c. 106, §§ 71, 73. “ The employee or his legal representatives shall . . . have the same rights to compensation and of action against the employer as if he had not been an employee,” etc. If he is a minor, this enlargement of his rights at common law does not extend to his father, suing in his own right.

The same construction is put upon the statute giving damages to persons injured by defects in highways, existing through the negligence of cities and towns. Harwood v. Lowell, 4 Cush. 310. Nestor v. Fall River, 183 Mass. 265.

It has also been given to a similar employers’ liability act by the Supreme Court of Alabama. Lovell v. DeBardelaben Coal & Iron Co. 90 Ala. 13. Woodward Iron Co. v. Cook, 124 Ala. 349. In this action the exceptions must be sustained.

Ordered accordingly.