Negligence, Employer's liability. If the superintendent of a proprietor of teams, which are used for loading manure at a place called "the dump" and transporting it to other places, tells the driver of one of the teams to take two designated men with him to the dump and load manure, sending there also at the same time another team with two men, and if, after loading at the dump, the second team gets stuck owing to the softness of the ground, and the driver of the first team unhitches his horses, and, handling the reins himself, orders the two men sent with him each to hitch one of the horses in front of the pole horses of the other team as leaders, and, after one of the horses has been so hitched, and when the man who was told to hitch the other horse is in the act of coupling the whiffletree to the loop on that side of the pole by means of a hook and chain, the driver, who still is handling the reins, strikes that leader with his whip, whereupon the horse jumps, and the man's finger is caught between the hook and the loop or ring and is injured, in an action by the injured man against the proprietor of the teams under R.L.c. 106, § 71, cl. 2, a verdict must be directed for the defendant, because the driver, who gave the order to the plaintiff and afterwards struck the horse with the whip, was not a person "whose sole or principal duty was that of superintendence," nor was he a person who "in the absence of such superintendent was acting as superintendent with the authority or consent" of the defendant; and, if there was negligence in striking the horse with the whip, it was that of a fellow servant of the plaintiff.
HAMMOND, J.
The first count of the declaration was waived and the case went to trial solely on the second.
The evidence tended to show that while the plaintiff, being in the employ of the defendant, was attempting to hitch a leading horse to a cart, and was in the act of coupling the whiffletree to the loop underneath the pole by means of a hook and chain, one Sullivan, who as the defendant's servant was handling the reins, struck the horse with his whip, causing the horse to jump, by reason whereof the plaintiff's right index finger was caught between the hook and the loop or ring and was crushed.
The question is whether the evidence would warrant a finding that for this act of Sullivan the defendant is answerable to the plaintiff. It is very plain he is not. Even if, without deciding, it be assumed in favor of the plaintiff that, in directing the plaintiff to hitch the horse to the pole, Sullivan was exercising a kind of superintendence, still it is perfectly obvious that he was not a person "whose sole or principal duty was that of superintendence." See O'Neil v. O'Leary, 164 Mass. 387. Nor can it be said that he was a person who "in the absence of such superintendent was acting as superintendent with the authority or consent" of the defendant. Carney v. A.B. Clark Co. 207 Mass. 200. Dodd was the regular superintendent and was acting as such. He was not absent within the meaning of R.L.c. 106, § 71, cl. 2. If there was any negligence it was that of Sullivan, the plaintiff's fellow servant, for which neither at common law nor under the statute was the defendant answerable. O' Connor v. Roberts, 120 Mass. 227. Carney v. A.B. Clark Co., ubi supra. Judgment for the defendant on the verdict.