203 Mass. 258 | Mass. | 1909
If we assume that Delauries might have been found to be a superintendent witMn the meaning of the employers’ liability act, R. L. c. 106, § 71, cl. 2, now St. 1909, c. 514, § 127, cl. 2, and that the plaintiff’s injury was due to the negligence of Delauries in pulling out the plank upon wMch one end of the coil of piping had rested, we are yet of opinion that the plaintiff showed no right of action against the defendant. Delauries’ act in pulling out the plank was not an act of superintendence, but merely the act of a fellow workman. For such an act the defendant cannot be held responsible. Hoffman v. Holt, 186 Mass. 572. The negligence was not in deciding to pull out the plank or in determining the mode of so doing which should be adopted; it was in pulling out the plank with so little care that its end Mt the post, swinging the other end around against Hall’s person. But tMs was purely the act of a fellow servant. McPhee v. New England Structural Co. 188 Mass. 141, 143, per Loring, J.
The testimony that Delauries had found fault with Hogan for having on former occasions pulled out the plank too slowly, and had said that he (Delauries) would show Hogan how to pull out the plank, did not, under the circumstances, indicate that he intended to adopt or did adopt any different mode of doing the work; it was simply a complaint that not enough alacrity had been shown and a somewhat boastful remark that he would do it more rapidly and efficiently. He still followed the same plan as before; and it was solely from his negligence in doing the manual labor that the accident resulted. See Moore v. Curran, 198 Mass. 60 ; McDonnell v. New York, New Haven, & Hartford Railroad, 192 Mass. 538; Flynn v. Boston Electric Light Co. 171 Mass. 395. The case at bar differs in this material respect
It has not been contended that the plaintiff could have recovered under his third count. There was no evidence of any failure to furnish safe and suitable tools, machinery and appliances.
The judge presiding properly ordered a verdict for the defendant.
Exceptions overruled.
