Douglas v. Holyoke Mach. Co.

• Decision Date: 10 October 1919
• Citation: 124 N.E. 478,233 Mass. 573
• Parties: DOUGLAS v. HOLYOKE MACH. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 573

124 N.E. 478

DOUGLAS

v.HOLYOKE MACH. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 10, 1919.

Report from Superior Court, Worcester County; Jabez Fox, Judge.

Action by Daniel S. Douglas against the Holyoke Machine Company, resulting in verdict for plaintiff. On report of the Supreme Judicial Court. Judgment entered for defendant.

Peter T. Dolan, of Boston, for plaintiff.

Edwin G. Norman, of Worcester, for defendant.

RUGG, C. J.

This is an action of tort, wherein the plaintiff seeks to recover compensation for personal injuries sustained by him while traveling upon Thomas street, a public way in Worcester, from being hit by an iron washer which came through a window of a building nearby occupied by the defendant. The decisive question is whether there was any evidence to warrant a finding that the washer came through the window by reason of any act of negligence for which the defendant was responsible.

There was testimony that the plaintiff did not see the washer until it hit him, when he saw it on the sidewalk. He then turned, looked into the window, and saw one Williamson within the building four or five feet from an upright drill; that he had some talk with Williamson, who said: ‘Excuse me; it is an accident. * * * It got away from me.’ ‘He [Williamson] said it was an accident, and he didn't consider himself to blame for it.’ In substance this testimony as to the conversation was repeated in the examination of Williamson himself. Such testimony was incompetent as against the defendant, the making of statements of that nature plainly not being within the scope of the authority of Williamson (McNicholas v. N. E. Tel. & Tel. Co., 196 Mass. 138, 143, 81 N. E. 889;Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 544, 104 N. E. 379); but having been admitted without objection, it was entitled to its probative force (Hubbard v. Allyn, 200 Mass. 166, 171, 86 N. E. 356). There is no indication in this statement, however, that this act occurred as a part of the master's business, or that it was negligent.

The testimony of Williamson, who was a witness at the trial, was to the effect that he threw the washer to attract the attention of a friend, who was passing on the opposite side of the street, and not for any purpose of his employment. The judge rightly instructed the jury that, if they believed his testimony, they must find for the defendant. But since they might have disbelieved this testimony, or that part of it favorable to the defendant (Commonwealth v. Russ, 232 Mass. 58, 70, 122 N. E. 176), the case must be considered in its other aspects most favorable to the plaintiff. Williamson was a machinist in the employ of the defendant. His work at the time in question was on a drill. He was standing at a bench where the tools were and ‘where all the washers were.’ ‘The washers were on a nail on the wall.’ The only testimony as to the use made of the washers was to the effect that they were bolted to the drill table. There is nothing in the record to show that Williamson in the course of his employment made, or was required to make, any use of the washers. The general manager of the defendant testified amongst other matters that there were damaged and worn-out washers in the shop, and that these were put into the scrap; that he could not tell whether sometimes employés of the defendant threw them out the window; that he did not care if they did so long as he was not hit; that he supposed sometimes they threw things out of the window, and that he would not discharge an employé ‘for anything like that.’ There was no evidence tending to show that any washer had actually ever been thrown into the street before, or that that was a customary disposition of them by the employés of the defendant, or that the one which hit the plaintiff was broken, disused or worn, or that Williamson in the course of his employment had anything to do with washers.

The rule of law governing the responsibility of a master for the act of his servant has been stated frequently. The master is liable for an injury done to a third person by the servant acting within the scope of his employment, for the purpose of executing his orders and doing his work, but not when the servant, disregarding either momentarily or for a longer period the object of his employment and not pursuing his duty as employé, executes a...