Riou v. Rockport Granite Co.

• Decision Date: 19 May 1898
• Citation: 50 N.E. 525,171 Mass. 162
• Parties: RIOU v. ROCKPORT GRANITE CO LEVIQUE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 162

50 N.E. 525

RIOU

v.ROCKPORT GRANITE CO

LEVIQUE

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

May 19, 1898.

Report from superior court, Essex county; Charles S. Lilley, Judge.

Two actions, one by Riou, the other by Levique, against the Rockport Granite Company. Verdict was directed for defendant in each case, and the cases reported to the supreme judicial court. Judgment for defendant.

These were two actions of tort for personal injury. In the superior court, before Charles S. Lilley, J., it appeared that plaintiffs were working at defendant's quarry, and were in a pit, when Labelle, the alleged superintendent, came along, and placed a can of powder near the edge of the pit on a ledge of rock. Soon after, a tag rope attached to a derrick, being set in motion, hit the can, turned it over, and spilled the powder, which went down into the pit, and exploded. The court ordered a verdict for defendant in each case, and reported the cases to the supreme judicial court.

J.J. Flaherty, for plaintiffs.

J.M.B. Churchill and R.O. Dodge, for defendant.

MORTON, J.

We think that there was testimony tending to show that the principal duty of Labelle was that of superintendence, though he also performed manual labor. He was called as a witness by the plaintiff, and testified, in answer to a question put to him by plaintiff's counsel, that it took most of his time “telling them [the men] what to do, and giving them the work”; and in reply to the question, “during the whole day, did you keep run of the men, and keep them at work, and tell them what to do, and what not to do?” he answered, “Yes, sir.” Later, in the course of the trial, he was recalled by the defendant, and testified that he worked about three-quarters of the time with his own hands, and that during that time he was bossing the men. But the jury might have found that the earlier testimony to which we have referred described more nearly the true character of his services, and, if they did so find, the finding would have warranted the conclusion that his principal duty was that of superintendence. Reynolds v. Barnard, 168 Mass. 226, 46 N.E. 703. But we think that the act of putting down the can of powder where he did, which is all the negligence that is relied on, hardly can be said to have been an act of superintendence on Labelle's part, even if we assume that it was negligent to leave the can where he did. There was testimony tending to show that to some extent the...