Morgridge v. Providence Tel. Co.

• Citation: 20 R.I. 386,39 A. 328
• Parties: MORGRIDGE v. PROVIDENCE TEL. CO.
• Decision Date: 08 February 1898
• Court: United States State Supreme Court of Rhode Island

39 A. 328

20 R.I. 386

MORGRIDGE

v. PROVIDENCE TEL. CO.

Supreme Court of Rhode Island.

Feb. 8, 1898.

Action by Edward Morgridge against the Providence Telephone Company. Heard on demurrer to declaration. Demurrer sustained.

Ballou & Tower, for plaintiff.

David S. Baker and Walter B. Vincent, for defendant,

TILLINGHAST J. We think the demurrer should be sustained. The plaintiff, while assisting in the moving of a large telephone pole, was injured by reason of the falling thereof upon his body. The declaration shows that the superintendent in charge of the work had directed the plaintiff and several other fellow servants of his to raise the top end of the pole in order that a carriage on two wheels, called a "dinkey," could be placed under said pole for the purpose of moving it to the hole where it was to be erected. After the pole had been raised, said dinkey was wheeled under the same, by direction of the superintendent, but, before it had reached the place where it was intended it should receive said pole,—that is, before it came in contact with the pole so as to support the same,—the superintendent gave the order to "let go"; whereupon the plaintiff, supposing that the dinkey was so placed as to instantly receive the weight of said pole, he not being in a position where he could see the dinkey, obeyed the order, and, by reason of the fact that the pole was some distance above the dinkey when said order was given, it fell, striking the plaintiff, and seriously injuring him.

In support of the declaration it is contended that the act of the superintendent in ordering the plaintiff and his fellow servants to let go their hold on the pole was, in law, the act of the defendant corporation, and, being a negligent act, gives the plaintiff a right of action. This contention is not tenable. In directing the plaintiff and his fellow servants to let go their hold on the pole, the superintendent was not performing on behalf of the defendant corporation any duty imposed by law upon it; that is, it was not an act which legally devolved upon the defendant to perform. The order to let go might as well have been given by any other employ?as by the superintendent. It was a mere incident in connection with the raising of the pole. And as it is the character of the act, and not the rank of the person performing it, which is the test by which to determine whether, in the performance thereof, the person acting is the representative of the master (Hanna v. Granger, ...