164 Mass. 387 | Mass. | 1895
The first request for instructions we pass'for the present, as it depends in part upon other requests which we shall consider at length
The fourth request should also have been given. We find no evidence of personal negligence on the part of the defendant in reference to the accident. It was not negligence to request McDonald and Earley to begin the work of blasting at five o’clock in the morning, nor to send McDonald to sharpen drills when all concerned supposed that the charge in the hole, from which he and Earley were removing the tamping had been exploded, the defendant having no knowledge which should have led him to suppose that it was possible that the hole had not been fired; nor was it negligent for him to send O’Neil to assist in manipulating the churn drill, which was too heavy for one man to work alone. In these matters he acted as any prudent man would act under the circumstances, there being nothing to indicate to him that any explosion could be caused by the removal of the tamping. McDonald’s unwillingness to leave the work of removing the tamping which he was engaged on with Earley when the defendant asked him to sharpen drills does not appear to have
While the fifth request does not follow the words of the statute, the question which has been argued, and which was doubtless intended to be covered by it, is covered by the first request, and we proceed to consider whether there was any evidence which would warrant the jury in finding that McDonald was a person in the service of the defendant intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, within the meaning of these words in the St. of 1887, c. 270, § 1, cl. 2. That he was intrusted with, and was exercising the duty of, superintending the blasting, might properly have been found by the jury. It clearly was not his sole duty. Can it be said that it was his principal duty ? On the evidence in the case put in by the plaintiffs, it is clear that he worked with his own hands in attending to the fire under the steam boiler, in sharpening all the tools used by the workmen, in charging the drill holes and in clearing them out, and in other acts of manual labor. One of the witnesses testified : “ Sharpening the tools occupied part of his time, and he attended to the fire to make the steam. He spent most of the time in sharpening the tools and keeping up steam. Whenever the steam drill was going he had to keep the steel sharp ; and if the drill would not be running he would have leisure to come out on .the ledge and talk, and see what was necessary to be done; but most of the time he was working, sharpening tools, keeping up steam, and coming out to place these holes.” There was also other evidence that his manual labor occupied most of his time, and there was no contradiction as to this.
In a sense it is undoubtedly true that superintendence is more important than manual labor, and so, if superintendence is intrusted to a man who also works with his hands, it may be said that his principal duty is that of superintendence. But if the statute had intended that every person exercising superintendence should not be considered a fellow servant with a person injured, there would have been no need of the words “ whose sole
In Malcolm v. Fuller, 152 Mass. 160, the evidence was conflicting as to the work done by the alleged superintendent, and the case therefore was left to the jury. In the cases at bar, we have considered only the evidence for the plaintiffs.
If the evidence in the case shows anything more than a pure accident, it shows negligence on the part of McDonald, who, as his principal duty was not that of superintendence, was but a fellow workman with the plaintiffs.
On these considerations it follows that the defendant was entitled to have the first instruction requested given, which was in substance that the jury would not be authorized to find a verdict for the plaintiff in either case. It is unnecessary to consider the other instructions requested.
Exceptions sustained-.
The instructions requested and refused were as follows: “ 1. There is no evidence which will authorize a verdict for the plaintiff in either case. . . .