Bowie v. Coffin Valve Co.
| Decision Date | 07 January 1909 |
| Citation | 86 N.E. 914,200 Mass. 571 |
| Parties | BOWIE SAME v. COFFIN VALVE CO. SAME v. FITCHBURG STEAM ENGINE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. A. Fuller and Chas. Toye, for plaintiff.
John Lowell and James A. Lowell, for defendant Coffin Valve Co.
Arthur P. Stone and Frederick W. Fosdick, for defendant Fitchburg Steam Engine Co.
These actions of tort were tried together, and, a verdict having been ordered in favor of both defendants, the cases are before us on a single bill of exceptions. The pleadings contain two counts at common law, and two under the statute but, as the plaintiff relied only upon the third count charging negligence of some person intrusted by the defendants with superintendence, the other counts are immaterial. The question for decision is whether there was any evidence which would warrant a verdict for the plaintiff against either or both defendants. Independently of the inquiry as to which one of the two was his master at the time of the accident, each defendant contends that he was not in the exercise of due care and assumed the risk. But his general employment had been that of a machinist's helper, and he never had worked in the manner described, in hoisting into place heavy castings while setting up a stationary steam engine. If, in connection with his inexperience in this particular line of service, there is taken into consideration the additional facts, that the work was done under the immediate supervision of a person who could have been found to have been acting as superintendent and that when directed to pull upon the chain falls he had the right to rely upon the presumption that sufficient precaution had been taken to prevent the casting, or section of the fly wheel, as it rose from the ground from swinging in too quickly as it was lowered into final position, the jury could find that, being at work in his appointed place under the eye of the master's representative, he was not guilty of contributory negligence if he failed to appreciate fully the danger that his fellow servant, who was in charge of the guy rope, might be unable to prevent the rope from slipping and the load from swinging so rapidly forward as to strike him. Feeney v. York Mfg. Co., 189 Mass. 336, 75 N.E 733; Meagher v. Crawford Laundry Machine Co., 187 Mass. 586, 589, 73 N.E. 853, and cases cited; Connolly v Booth, 198 Mass. 577, 84 N.E. 799; Robertson v. Hersey, 198 Mass. 529, 84 N.E. 843. If there was evidence for the jury on this issue, the defendants urgently insist that they severally are without fault. But the jury would be warranted in finding that one Daniels, to whom was delegated the sole charge of erecting the engine, and whose orders the plaintiff was directed to obey, was acting as superintendent within the meaning of the statute. Jordan v. New England Structural Co., 197 Mass. 43, 83 N.E. 332; Murphy v. New York, New Haven & Hartford Railroad Co., 187 Mass. 18, 72 N.E. 330; Baldwin v. American Writing Paper Co., 196 Mass. 402, 82 N.E. 1. The selection and use of the appliances, their proper adjustment, the method of operation, and the number of men who should be at the falls, or managing the guy rope, were all within his supervision and control. He was there because of his knowledge and skill to 'superintend the erection of the engine, ready for steam connections.' It was a matter peculiarly within his judgment to determine how many men were necessary safely to manage the rope attached to the casting, and the evidence plainly showed, or it could have been found, that either more men ought to have been directed to steady the load or a different method should have been adopted. But if this was sufficient to require the submission of this issue to the jury under the decisions in Reardon v. Byrne, 195 Mass. 146, 80 N.E. 827, and Connolly v. Booth, 198 Mass. 577, 84 N.E. 799, and cases cited, we are brought to the further question, in whose service was the plaintiff employed when injured? It was part of its contract that the Fitchburg Steam Engine Company should set up, connect and 'turn over' the engine in running order. In performance of this part of the contract, it sent Daniels. Upon the uncontradicted evidence he was there, and acting, not as the representative of the vendee, but of the vendor. In the prosecution of the work, he alone gave the necessary orders, which were obeyed by the men, including the plaintiff, all of whom had been furnished by the vendee. He was vested with the power of control, and the scope of his authority included everything which might be properly required for the...
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