176 Mass. 422 | Mass. | 1900
As we understand the bill of exceptions, the gravel taken from the pit at the time when the plaintiff’s intestate received the injuries which caused his death was used in making ordinary repairs upon Hingham Avenue, a public highway in the defendant town. We also understand that the plaintiff’s intestate was engaged in getting out this gravel, and that he was doing it under the direction of the superintendent of streets of the defendant town. It is clear that the superintendent of streets was a public officer. St. 1893, c. 423, §§ 25, 26.
We do not see why, therefore, if there was any negligence on his part, it was not, as the defendant contends, that of a public officer engaged in the performance of a public duty. Clark v. Easton, 146 Mass. 43. Pratt v. Weymouth, 147 Mass. 245. Taggart v. Fall River, 170 Mass. 325. Mahoney v. Boston, 171 Mass. 427. Collins v. Greenfield, 172 Mass. 78.
The plaintiff seeks to avoid the effect of the rule thus invoked by attempting to show that the superintendent was engaged as a servant of the town in matters relating to its private benefit and not to its public duty. To do this she relies on the following circumstances. The accident occurred October 7, 1898. There were at . the time, in the pit where it occurred, piles of stones, part of which came from that pit and part from other pits. This stone was crushed immediately after the accident for the use of the town. But in November or December following, some of it was used on the line of a street railway located on a highway called Great Plain Avenue, and
But these circumstances did not show, and had no tendency to show, that the work in which the superintendent was engaged at the time of the accident to the plaintiff’s intestate was not the performance of a public duty. As already observed, the gravel which the plaintiff’s intestate was getting out was used in making ordinary repairs upon one of the public highways of the town, and there is nothing to show that it had been arranged or was in contemplation that stone should be crushed for use on the line of the street railway company or for any other private use. On the contrary, it is stated that the stone that was in the pit was crushed for the use of the town, meaning, as we understand it, for its public use. The fact that several months before the town had made repairs for a street railway company on a highway for which it was paid in November, had no tendency to show that the work" in which the superintendent was engaged at the time of the accident was being done by him in his capacity as an agent of the town rather than as a public officer. Nor did the fact that the-town several weeks after used some of the crushed stone on the line of another street railway have any such tendency. The work in which the superintendent was engaged being done by him as a public officer, whatever orders or directions he may have given at the time of the accident are to be regarded as given in that capacity, and not as given in some other capacity, which there is no evidence that he was undertaking to fill.
The questions put to Wright and Henderson were properly excluded.
Wright was asked, in direct examination by the plaintiff’s counsel, whether or not, at about the time following the accident when the material from the falling bank had been sorted out, he worked on the stone heap,? "Also what the gravel was used for which was taken from the pit ? And whether or not during that period gravel from the pit was used upon the
