Pittsley v. Allen

• Decision Date: 30 March 1937
• Citation: 7 N.E.2d 442,297 Mass. 83
• Parties: PITTSLEY v. ALLEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 83

7 N.E.2d 442

PITTSLEY

v.ALLEN et al.

Supreme Judicial Court of Massachusetts, Bristol.

March 30, 1937.

Exceptions from Superior Court, Bristol County; Baker, Judge.

Action of tort by Marjorie E. Pittsley, administratrix, against Elizabeth M. Allen and others. Findings were rendered for plaintiff in the aggregate sum of $3,500. On defendant's exceptions.

Exceptions sustained, and judgment entered for defendant.G. H. Young and W. S. Downey, both of New Bedford, for plaintiff.

A. Auger, of New Bedford, for defendant.

LUMMUS, Justice.

The amended declaration is in three counts, one for the negligent injury and conscious suffering of the plaintiff's intestate, an employee of the defendant in harvesting ice, and two others apparently based upon G.L.(Ter.Ed.) c. 229, § 7, for negligently causing the death of the plaintiff's intestate. Neiss v. Burwen, 287 Mass. 82, 191 N.E. 654. The facts appear in the report of an auditor whose findings of facts were to be final.

The defendant was not insured under the Workmen's Compensation Act, and consequently cannot rely upon contributory negligence, voluntary assumption of risk, or the fellow servant rule. G.L.(Ter.Ed.) c. 152, § 66; Sylvain v. Boston & Main Railroad, 280 Mass. 503, 505, 182 N.E. 835;Demaris v. Van Leeuwen, 283 Mass. 169, 171, 186 N.E. 69. The plaintiff's intestate suffered the injury which caused his death when the timbers of an ice run pulled apart, and he fell to the ground, because the wood had rotted and a bolt did not hold. The rottenness of the wood was such as to amount to a defect in the condition of the defendant's ways, works and machinery which had not been discovered or remedied because of the negligence of a person in the service of the defendant entrusted by her with the duty of seeing that the ways, works and machinery were in proper condition, within the Employers' Liability Act (G.L. [Ter.Ed.] c. 153, § 1), as well as a breach of the defendant's duty to her employees at common law. Fraioli v. New York, New Haven & Hartford Railroad, 286 Mass. 450, 190 N.E. 605.

But the plaintiff's intestate was himself the defendant's superintendent, and was entrusted by her with the duty of inspecting, repairing and keeping safe all the property, equipment and instruments used in the business. The defendant relied wholly upon him, and never acted personally in the matter. If she was chargeable with negligence, it was only because his negligence was imputed to her by a rule of law. If, because of his negligence, a third person had been injured or killed, and she had been compelled to pay damages, the plaintiff's intestate would have been bound to reimburse her. White v. Phillipston, 10 Metc. 108, 111;Westfield v. Mayo, 122 Mass. 100, 107, 23 Am.Rep. 292;Gordon v. Cross & Roberts, Inc., 287 Mass. 362, 191 N.E. 407;Alderman v. Noble (Mass.) 4 N.E.(2d) 619. The doctrine that an employer, even when the fellow servant rule is in force, cannot rid himself of the duty of using due care to furnish an employee a safe place for work, by delegating that duty to a fellow employee or any other person, Rogers v. Ludlow Manuf. Co., 144 Mass. 198, 204, 205, 11 N.E. 77,59 Am.Rep. 68;Moynihan v. Hills Co., 146 Mass. 586, 592, 16 N.E. 574,4 Am.St.Rep. 348;Cronan v. Armitage, 285 Mass. 520, 525, 190 N.E. 12, has no application to an injury to the very employee who has undertaken to perform that duty for the employer, Allen v. G. W. & F. Smith Iron Co., 160 Mass. 557, 36 N.E. 581;Drum v. New England Cotton...