Gardner v. New England Telegraph & Telephone Co.

• Decision Date: 08 January 1898
• Citation: 170 Mass. 156,48 N.E. 937
• Parties: GARDNER v. NEW ENGLAND TELEGRAPH & TELEPHONE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 156

48 N.E. 937

GARDNER v. NEW ENGLAND TELEGRAPH & TELEPHONE CO.

Supreme Judicial Court of Massachusetts, Worcester.

January 8, 1898

COUNSEL

Herbert Parker, C.C. Milton, and C.F. Stevens, for plaintiff.

John Lowell and John Lowell, Jr., for defendant.

OPINION

MORTON, J.

The evidence which was excluded would have tended to show that the accident occurred in consequence of an order or direction given by Jacobs; in other words, that the accident was caused by an act of superintendency on his part. The evidence should have been admitted, therefore, if there was any testimony tending to show that the sole or principal duty of Jacobs was that of superintendence. We think that there was. The exceptions recite that "the plaintiff testified, as did other witnesses, co-employés of the plaintiff, that Jacobs sometimes did work of the same character with the other men, but generally directed the men." There was also testimony tending to show that he was known to the plaintiff and other employés as a foreman; that the employés received their orders from him, and no one else; that he employed and discharged men; that in fieldwork and elsewhere he had entire charge of the men; and that the plaintiff received $55 per month, and Jacobs $75. This would have justified the jury in finding that he was something more than a mere laborer in charge of a gang, which the defendant contended was what he was, according to other testimony in the case, and would have justified them in finding that his principal duty, though not his sole one, perhaps, was that of superintendence. Malcolm v. Fuller, 152 Mass. 166, 25 N.E. 83; Prendible v. Manufacturing Co., 160 Mass. 131, 139, 35 N.E. 675; Mahoney v. Railroad Co., 160 Mass. 578, 579, 36 N.E. 588; Crowley v. Cutting, 165 Mass. 436, 43 N.E. 197. The case comes here on the plaintiff's exceptions to the exclusion by the court of the evidence relating to the orders given by Jacobs, and to the ruling of the court that there was no evidence to go to the jury on either of the counts contained in the plaintiff's declaration, and to the ordering of a verdict for the defendant. We do not see, therefore, that the exception taken by the defendant to the admission of the notice, or the question of its sufficiency, is before us. Exceptions sustained.