Hooe v. Boston & N. St. Ry. Co.

• Decision Date: 22 November 1904
• Citation: 72 N.E. 341,187 Mass. 67
• Parties: HOOE v. BOSTON & N. ST. RY. CO. et al. WELCH v. SAME. LANE v. SAME. DONAHUE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 67

72 N.E. 341

HOOE

v.BOSTON & N. ST. RY. CO. et al.

WELCH

v.SAME.

LANE

v.SAME.

DONAHUE

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 22, 1904.

Exceptions from Superior Court, Essex County; Frederick Lawton, Judge.

Separate actions by William D. Hooe, Garrett E. Welch, Ernest Lane, and John D. Donahue against the Boston & Northern Street Railway Company and others. To the judgments rendered defendants bring exceptions. Exceptions in the first three cases sustained. Exceptions in the fourth case overruled.

R. H. Sherman and W. C. Ford, for plaintiffs Garrett E. Welch and Wm. D. Hooe, W. J. Bradley and C. H. Rogers, for plaintiff Ernest Lane.

Knox & Coulson, for defendant Farnum.

J. P. Sweeney, H. R. Dow, and L. S. Cox, for defendant Middleton & Danvers St. Ry.

KNOWLTON, C. J.

The first three cases were brought to recover damages caused by an explosion of dynamite on February 14, 1902, and the fourth was brought against the same defendants to recover for a similar explosion which occurred on February 15, 1902. The first three cases were tried together in the superior court, and the four were argued together in this court. We will consider first the exceptions of the defendant Farnum in the first three cases. The plaintiffs were admitted to have been in the exercise of due care. The explosion occurred in the morning, while the men were at work with pick and shovel, under the direction of the superintendent of the defendant Farnum, on the mass of earth and rocks where a blast had been exploded about half past 3 o'clock in the afternoon of the day before. There was evidence which well warranted the jury in finding that the accident was caused by an unexploded piece of dynamite which was left in one of the holes after the blast of the day before, and that no such inspection was made by the defendant or his superintendent as should have been made to guard against such an accident. See Hopkins v. O'Leary, 176 Mass. 258, 57 N. E. 342.

The judge rightly declined to instruct the jury that the superintendent and workmen engaged in the work were servants of the Middleton & Danvers Street Railway Company, and not of the defendant Farnum. Upon the undisputed facts, under the agreement in writing between Farnum and the railway company, the management, control, and direction of the men employed upon the work were in the defendant Farnum, and not in the railway company. It was a contract which gave Farnum the legal right to provide all the necessary labor and materials to complete the subgrading and ballasting of the proposed line of railroad. By the terms of the writing he was to have ‘the general direction of the work,’ and he could be displaced only in case the progress made on the work was ‘not satisfactory to the railroad company’in reference to the time when he agreed to have it completed. The expression, ‘subject to the direction and acceptance of the engineer,’ is similar to the common provision in building contracts which gives the architect a right to represent the owner in determining whether the work is in accordance with the requirements of the contract. In this case the work to be done is described in the agreement very generally. Probably something as to the details of construction was understood to be left to the determination of the engineer or agent. But this did not give to the engineer any right of control or direction as to the execution of the work after he had indicated to the contractor what was to be done and what materials were to be furnished. His further right was to determine whether the work done by the contractor was acceptable. The employés, being subject to the defendant's direction and control while engaged in working, were his servants, in reference to the rule which makes a master liable to third...