| Mass. | May 17, 1898
The bill of exceptions recites that, at the close of the evidence, the defendants’ counsel presented, four requests for rulings, of which the second is as follows: “ There is no evidence to go to the jury of any defect "in the ways, works, and •machinery.” The defendants’ brief contains the same recital in the same words, and then says, “ The second request the court gave, and refused to give the other three, to which the defendants duly excepted, and pray that their exceptions may be allowed.” The defendants’ argument is confined to the exceptions to the refusal to give the other three rulings requested. In the bill of exceptions it is said that the judge refused to give the rulings requested, but that he gave full instructions on the subjects mentioned in the requests, to which no exceptions were taken, except so far as they were inconsistent with the requests. We are in doubt as to what instruction was given in regard to the subject of the second request, but we think we are justified in acting upon the admission of the excepting partjq and in assuming that the inaccuracy is in the bill of exceptions rather than in the defendants’ brief, which admits that there was no. exception on this part of the case, and makes no argument or request in regard to it.
The questions argued by the defendants are whether there was evidence to charge them on the ground of negligence of their superintendent in the performance of his duty as superintendent, and whether there was error in the admission of evidence against their objection.
1. There was ample evidence, which need not be stated, to show that Lowrey was a person whose principal duty in the service of the defendants was that of superintendence. •
2. The difficult question in the case is whether there was evidence that his negligence in the performance of his duty as superintendent caused the accident, or contributed to it. The evidence is undisputed that the work at the time and place of the accident was being done under his immediate personal direction and superintendence. There is no doubt that the plaintiff
It may be that the men whose duty it was to put the fore and after into its socket when it was lowered were negligent. Whether they were or not does not distinctly appear. However that may be, we think there was evidence of negligence in lowering the fore and after in the manner described, so that if it failed to enter its socket it would fall on the 'men below. Not only was Lowrey responsible for the method adopted to do the work, and for the directions given to the other men there, but he with his own hands unwound the rope from the drumhead to lower the fore and after in such a way that he could not control the iron as it was being lowered, and so it fell upon the plaintiff. We have no hesitation in saying that there was evidence of negligence on the part of Lowrey. The defendants contend that his negligence, if any, consisted in unwinding the rope from the drumhead, which was" work ordinarily done by a mere employee, and not that of a superintendent. If his only connection with the accident were-in this act of manual labor, we should be inclined to adopt the defendants’ view. But he had determined upon the method of putting the fore and after in place, and had given directions which made his act of unwinding the rope in its wet condition dangerous to the men below. See Mc Cauley v. Norcross, 155 Mass. 584" court="Mass." date_filed="1892-02-25" href="https://app.midpage.ai/document/mccauley-v-norcross-6424108?utm_source=webapp" opinion_id="6424108">155 Mass. 584. We are of opinion that the part of the work which he did with his hands must be considered in connection with his relations to the work as superintendent, and that we cannot separate it from the other conditions for which he was responsible by supervising and giving orders. A majority of the court are of opinion that there was evidence for the jury on this branch of the case.
The wages that the plaintiff was receiving as an employee at the time of the accident might properly be shown as bearing upon the question of damages. Murdock v. New York & Boston Despatch Express Co. 167 Mass. 549" court="Mass." date_filed="1897-02-24" href="https://app.midpage.ai/document/murdock-v-new-york--boston-despatch-express-co-6425862?utm_source=webapp" opinion_id="6425862">167 Mass. 549. Harmon v. Old Colony Railroad, 168 Mass. 377" court="Mass." date_filed="1897-05-20" href="https://app.midpage.ai/document/harmon-v-old-colony-railroad-6425984?utm_source=webapp" opinion_id="6425984">168 Mass. 377.
The fact that Lowrey was paid higher wages than an ordinary laborer was a circumstance to be considered in connection with the other circumstances upon the question whether his sole or
The expert was rightly allowed to answer the hypothetical question whether a certain method of lowering the fore and after, which the evidence tended to show was adopted in this case, was a proper method.
Exceptions overruled.