Mcphee v. New England Structural Co.

• Decision Date: 18 May 1905
• Citation: 188 Mass. 141,74 N.E. 303
• Parties: McPHEE v. NEW ENGLAND STRUCTURAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 141

74 N.E. 303

McPHEE v. NEW ENGLAND STRUCTURAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1905

COUNSEL

John R. Murphy and John E. Stacy, for plaintiff.

Walter

I. Badger and Wm. Harold Hitchcock, for defendant.

OPINION

LORING J.

This action was left to the jury on the second count of the declaration. That was a count under the employers' liability act for negligence of a superintendent. The jury found for the plaintiff, and the case is here on a refusal to direct a verdict for defendant, and to rule that the act of one Cairns in starting the engine (the cause of the accident) was not an act of superintendence.

The defendant was engaged in raising and placing in position a bridge across a canal, one end of which was to enter the second story of a mill building. The work was in charge of a man named Cairns. Cairns not only acted as superintendent but, in addition, took part in the work, and ran the engine used in hoisting. Beside and under Cairns were four men--among others, the plaintiff's intestate, Frank McPhee. The bridge consisted of six skeleton trusses, about 90 feet in length, and weighing about 5,000 pounds each. Five of them had been placed in position before the accident here complained of. That accident happened while the sixth truss was being hoisted up to be put in position. The truss in question was being hoisted by means of two gin poles and an begine. Each gin pole was from 40 to 50 feet in length, and was held in position by stays from the top of the poles to the ground. These gin poles were about 60 feet apart, and equidistant from the ends of the truss. Attached to each gin pole was a fall, consisting of a double block attached to the top of the poles, and a single block attached to one end of the truss, and the end of each fall was connected with a drum of an engine. This engine was behind a fence parallel with the building. There was a gateway in this fence. When the truss in question was lying on the ground, before the hoisting of it was begun, one end lay in the gateway, and the other end projected into a large doorway of the mill building through which freight cars ran. This fence prevented the person who was running the engine from seeing the truss until it was raised above the fence. The falls had been attached to the truss, and it had been raised so that the outer end was high enough, and the building end not quite so high, before the accident complained of happened. The building end of the truss had first stuck in the doorway, and, after it was drawn clear of that, it jammed against the wall of the building above the doorway. The hoisting was then stopped, and an effort was made to pull it away from the building by a runner which ran to the 'nigger head' of the engine--in substance, a third drum. This was not successful, and McPhee mounted that end of the truss, apparently with a crowbar, to clear the end of the truss from the building. Cairns testified that McPhee shouted that the end was clear, and to start the engine; that he did so, but the drum would not move. Thereupon he went out and called to McPhee that the end must be still foul of the building, to which McPhee answered that it was not, and to go ahead, whereupon he went back, put on an extra strain, the engine made a few revolutions, and the rope broke, causing the injuries here complained of, from which McPhee died.

If the jury believed the story told by Cairns, a verdict for the defendant should have been directed as matter of law. But the jury were not bound to believe that story. One of...