Igo v. Boston Elevated Ry. Co.
| Decision Date | 07 January 1910 |
| Citation | 204 Mass. 197,90 N.E. 574 |
| Parties | IGO v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff's opening statement also showed the following:
Plaintiff was working in defendant's street car barn as an engine tender, and Lynch told him to get a sledge hammer and some rivets to repair a street car fender; but the rivets were too small, and Lynch told him to get a carriage bolt for that purpose. The carriage bolt had a square head and screws on the end, so that it was necessary to hammer a burr or rivet head on the head of the bolt. The superintendent took a tool cutter, for which he sent plaintiff, and knocked off the burr made on the head of the bolt, and, there being a slight projection remaining, told plaintiff to hold the sledge hammer under the bolt while he took the bolt cutter and clipped the projection off; a piece flying in plaintiff's eye.
Rivets are usually made of soft iron, which readily yields and forms a head that is firm, while carriage bolts are made of steel with nuts and threads, of material which hardens, becomes brittle, and cracks when hammered, so that it would be liable to fly off in pieces. When the superintendent told plaintiff to repair the fender, there was a blacksmith shop close at hand at which it could have been repaired, or at which rivets could have been made to use in repairing it, if there were none in stock.
John F. Cronan, for plaintiff.
Wm. J Thompson and Sanford H. E. Freund, for defendant.
Upon the facts stated by the plaintiff's counsel in opening we are of opinion that the jury would have been warranted in finding that Lynch was a superintendent in the employ of the defendant within the meaning of Rev. Laws, c. 106, § 71, cl. 2, now contained in St. 1909, c. 514, § 127, cl. 2, and that the injury to the plaintiff resulted from Lynch's negligence. This negligence, the jury might have found, consisted in determining to use a carriage bolt upon the fender as a rivet, a purpose for which it was unfit and for which Lynch should have known that it was unfit. They might also have found that he was negligent in subsequently determining, after this bolt had been hammered and its material thus had been made harder and more brittle, to cut off the head of the bolt with a cutter, in the manner and with a tool which properly could have been used if he had been dealing with a rivet, but which could not be safely used upon the head of a carriage bolt which had been thus hardened and rendered brittle. This negligence would be the negligence of a superintendant, acting as such, for which the defendant would be liable under the statute already referred to. Shannon v. Shaw, 201 Mass. 393, 396, 87 N.E. 748; Coates v. Soley, 194 Mass. 386, 80 N.E. 464; Hourigan v. Boston Elev. Ry., 193 Mass. 495, 498, 79 N.E. 738; Meagher v. Crawford Laundry Machine Co., 187 Mass. 586, 73 N.E. 853. It could be found that his negligence was not in carelessly executing the plan which he had formed, as in Sarrisin v. S. Slater & Sons, Inc., 203 Mass. 258, 89 N.E. 529, and other cases relied on by the defendant, but, as in the cases above cited, in the adoption of a plan which the jury could find to have been negligently adopted. His failure to warn the plaintiff of the increased risks caused by the course adopted also might be found to have been negligence for which the defendant would be liable.
In view of the plaintiff's ignorance of the dangers to which he...
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