Negligence, Employer's liability. In an action under R.L.c. 106, § 71, cl. 2, by a teamster against his employer for personal injuries received when assisting in moving a wooden house, alleged to have been caused by the negligence of a superintendent of the defendant, it appeared that a person, who was admitted to be a superintendent within the meaning of the statute, ordered the plaintiff to unhitch his horse from the wagon in order to haul certain heavy timbers up to the house, and ordered another workman to make fast to the timber, which he did, that the plaintiff hitched to the timber and started the horse but the chain slipped, and as the plaintiff was in the act of prying two of the timbers apart, to make it easier for the horse to haul the timber to which the chain was attached, the superintendent took hold of the horse's head and started him, causing the plaintiff to be caught between two timbers and injured. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the superintendent; and that the act of the superintendent in starting the horse, although in itself an act of manual labor, could be found to have been done as an act of superintendence for the purpose of assisting in doing what he as superintendent had ordered to be done.
MORTON, J.
We think that there was evidence warranting a finding that the plaintiff was in the exercise of due care and that the accident was due to a negligent act of superintendence on the part of Murray. It could have been found, and for aught that appears it was found, that in taking an iron bar and prying the timbers apart the plaintiff was engaged in the performance of work which he was hired to do, and that he had no reason to suppose that Murray would start the horse or that the horse would start of its own motion. It could not have been ruled therefore that he was wanting in due care.
The exceptions recite that it was admitted that Murray was "a superintendent within the meaning of the employers' liability act." There was evidence tending to show that Murray directed the plaintiff to unhitch the horse from the wagon so as to haul the timber up to the house and directed one of the men to make fast to the timber, which he did, and that the plaintiff thereupon hitched on to the timber and started the horse, but the chain slipped, and as he was in the act of prying the timbers apart so as to make it easier for the horse to pull the timber, Murray took hold of the horse's head and started it up causing the injury complained of. It is plain we think that Murray's act in starting up the horse was or could have been found to be done as an act of superintendence for the purpose of assisting in doing what as superintendent he had directed to be done, and therefore to derive its quality not from the mere act of manual labor which was necessary in starting the horse, but from the exercise of the controlling authority which he had as superintendent. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586. McPhee v. New England Structural Co. 188 Mass. 141. Whether there was negligence on Murray's part was clearly for the jury. It follows that the rulings that were requested were rightly refused.
Exceptions overruled.