Negligence, Employer's liability. If a boy fifteen years of age employed as a back boy in a cotton mill, whose duty it is to clean certain mules when stopped for the purpose, while proceeding to clean a mule which he is justified in believing has been stopped for the purpose of being cleaned, and having no reason to think that repairs are to be made upon the mule while he is cleaning it, is injured by the carriage of the mule being moved for such repairs, in an action against the proprietor of the mill for his injuries he can be found to have been in the exercise of due care.
If a superintendent in charge of a room in a cotton mill, having reason to know that a boy fifteen years of age is or may be at work back of a mule cleaning its weights and that the boy is justified in thinking that the mule has been stopped for the purpose of being cleaned, sends a workman to repair the mule without taking any steps to ascertain where the boy is and if necessary to give him notice in time to save himself when the mule is moved, and the workman in proceeding to make the repairs sets the carriage of the mule in motion and injures the boy, in an action by the boy against his employer for his injuries there is evidence of negligence on the part of the superintendent.
Under the provisions of the employers' liability act a workman by his contract of employment does not assume the risk of an accident caused by the negligence of a superintendent of his employer.
HAMMOND, J.
While the evidence was conflicting and would have warranted a finding for the defendant on several matters essential to the maintenance of the plaintiff's case, still we cannot say as matter of law that it did not warrant findings that the plaintiff, being at the time of the accident in his sixteenth year, believed that the mule was stopped for the purpose of being cleaned, and was justified in that belief; that it was the plaintiff's duty then to clean it, and that in the performance of that duty he proceeded to clean it; that he did not know and had no reason to think that repairs were to be made upon the mule while he was cleaning it; and that while thus at work he exercised due care according to the lights he had.
The evidence further warranted findings that L'Heureux was a person whose principal duty was that of superintendence, (Malcolm v. Fuller, 152 Mass. 160; Prendible v. Connecticut River Manuf. Co. 160 Mass. 131; Knight v. Overman Wheel Co. 174 Mass. 455, and cases therein cited,) and that he was negligent in his duty to the plaintiff in permitting the carriage to be moved without taking some steps to ascertain where the plaintiff was and, if necessary, to give him notice in time to save himself. Such findings are sufficient to maintain the plaintiff's case.
The plaintiff under the statute upon which the third count is based did not assume the risk of this carelessness of L'Heureux. "The risk which the workman assumes by virtue of his contract of employment does not include the risk arising from the negligent act of a superintendent." Murphy v. City Coal Co. 172 Mass. 324, 327, and cases cited.
Exceptions overruled.