Grebenstein v. Stone & Webster Engineering Corp.
| Decision Date | 25 March 1910 |
| Citation | 91 N.E. 411,205 Mass. 431 |
| Parties | GREBENSTEIN v. STONE & WEBSTER ENGINEERING CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Coakley & Sherman, Daniel H. Coakley, and William Flaherty, for plaintiff.
Peabody Arnold, Batchelder & Luther and William G. Thompson, for defendant.
This is a very voluminous record; but the main question presented is comparatively simple. The plaintiff's declaration contained originally six counts; but the case finally went to the jury upon only the first one. This count, as amended alleged that the plaintiff was employed by the defendant at work in a power house, and was negligently 'directed by the one in charge under the defendant' to remove lead coverings from certain wires which were the main feeders running from the switchboard in that power house; that the defendant knew that this work was dangerous and this was not known to the plaintiff; that the defendant failed to warn him of the danger, and urged him to use at his work tools which added to the dangers thereof, as the defendant knew, but failed to warn him thereof or to instruct him as to avoiding the same, by reason whereof he was greatly injured.
The particular negligence upon which the plaintiff relied at the trial was the conduct of one McGerry in setting him to work at stripping the lead covering from certain electric wire cables, with, as the plaintiff claimed, an assurance that the work could be done safely, or that the cables were 'dead,' and further in ordering him to use a chisel instead of a hammer in doing the work. This occurred some weeks after the plaintiff had begun work at the power house. The cables were not dead; the plaintiff in removing the lead from one of them apparently cut also through the rubber insulation which was underneath the lead; and he suffered a violent shock of electricity through which he received the serious injuries complained of.
McGerry was at least a foreman, and it may be that he was a superintendent for whose negligence the defendant could have been held liable under Rev. Laws, c. 106, § 71, cl. 2, now St. 1909, c. 514, § 127, cl. 2. But McGerry was still a fellow servant of the plaintiff, the defendant could not be made answerable at common law for his negligence ( Colford v. New England Structural Co. [Feb. 25, 1910] 91 N.E. 409), and it was only upon a count at common law that the plaintiff finally relied. There was no duty incumbent upon the defendant to warn the plaintiff of the general danger of working upon or near to heavily charged electric wire cables, both because that was one of the obvious risks of his employment and also because he was fully aware of that risk. Chisholm v. New England Telephone & Telegraph Co., 176 Mass. 125, 127, 57 N.E. 383; McIsaac v. Northampton Electric Co., 172 Mass. 89, 91, 51 N.E. 524, 70 Am. St. Rep. 244; Beique v. Hosmer, 169 Mass. 541, 543, 48 N.E. 338; Linch v. Sagamore Manuf. Co., 143 Mass. 206, 9 N.E. 728. But where the master is under no such duty, he cannot be held liable at common law for the negligent act of one servant, though of higher rank than other servants, in giving orders of which the execution results in injury to another servant. Ahern v. Hildreth, 183 Mass. 296, 67 N.E. 328; Healey v. George F. Blake Manuf. Co., 180 Mass. 270, 62 N.E. 270; O'Brien v. Rideout, 161 Mass. 170, 36 N.E. 792; Kalleck v. Deering, 161 Mass. 469, 37 N.E. 450, 42 Am. St. Rep. 421; Moody v. Hamilton Manuf. Co., 159 Mass. 70, 34 N.E. 185, 38 Am. St. Rep. 396. This case very much resembles Kenney v. Shaw, 133 Mass. 510. The plaintiff there was injured in drilling out a hole in which a previous charge of blasting material had failed ton explode. He was set to do this work by a superintendent, with an implied assurance of safety. It was held that he could maintain no action at common law against his employer, although he now could have a remedy under the statute. Malcolm v. Fuller, 152 Mass. 160, 25 N.E. 83.
It follows that the plaintiff could not maintain his action upon the only count which was submitted to the jury; and a verdict should have been ordered for the defendant in accordance with its first request.
The plaintiff ought not to have been allowed, in cross-examining Buckley, to show that there had been an attempt or offer to compromise the plaintiff's claim. This was wholly wrong, and it was manifestly injurious to the defendant. The ruling cannot be supported on the ground that material admissions made by a party may be proved against him, though made in the course of negotiations for a settlement, which by themselves are inadmissible. Marsh v. Gold, 2 Pick. 285, 289, 290; Gerrish v. Sweetser, 4 Pick. 374; Dickinson v. Dickinson, 9 Metc. 471; Upton v. South Reading Branch Railroad, 8 Cush. 600; Gay v. Bates, 99 Mass. 263; Draper v. Hatfield, 124 Mass. 53; Higgins v. Shepard, 182 Mass. 364, 65 N.E. 805. No such admissions were sought to be shown, even if Buckley had authority to make them, which was not shown.
Evidence of the previous accident to the plaintiff was incompetent. It had no proper bearing upon any of the issues in the case. Aiken v. Holyoke Street Railway, 184 Mass. 269, 274, 68 N.E. 238; Dean v. Murphy, 169 Mass. 413, 48 N.E. 283; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71, 75, 42 N.E. 501; Maguire v. Middlesex Railroad, 115 Mass. 239; Collins v. Dorchester, 6 Cush. 396. The competency of McGerry was one of the issues when the evidence was received; but evidence of a specific act of negligence on his part was not competent upon that issue. Olsen v. Andrews, 168 Mass. 261, 265, 47 N.E. 90, and cases cited.
We cannot say that the judge might not in the exercise of his discretion allow the statement of Waterman to be read to the jury. It contained much matter that was wholly immaterial, but it might be found to be in some respects inconsistent with parts of the testimony which Waterman had given. It would have been better to allow the jury to hear only those parts of the statement which did tend to vary or control his previous testimony. But it could be found that this was one connected statement of the whole matter as it then lay in Waterman's memory; and the course adopted cannot be declared as matter of law to be wrong.
It was provided by Rev. Laws, c. 173, § 57, that either party to an action might 'file interrogatories to the adverse party for the discovery of facts and documents material to the support or defense of the action.' The scope of this section has been much broadened by St. 1909, c. 225, which took effect five days after the superior court had ruled upon the interrogatories filed by the defendant in this action. The rights of the parties, accordingly, must be decided upon the earlier statute.
Under this statute it has been said that the right of either party to file interrogatories was limited to such matters as were material to the support of his own case, and did not extend to matters in support of the case of the adverse party. Wilson v. Webber, 2 Gray, 558; Sheren v Lowell, 104 Mass. 24, 27; Wetherbee v. Winchester, 128 Mass. 293; Davis v. Mills, 163 Mass. 481, 40 N.E. 852. But this does not mean that he could file interrogatories only as to matters upon which he had the burden of proof, or that a defendant whose answer was merely a general denial could not require the plaintiff to answer any interrogatories. Smith v. Beaufort,...
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