Negligence. In an action by an employee of a construction company, engaged in doing the mason work for a large coal pocket, against an iron company, engaged at the same time in doing the iron work for the same coal pocket, for personal injuries from an iron beam falling upon him when it was being hoisted by means of a derrick furnished and operated by the plaintiff's employer, if there is evidence that the defendant's foreman wished to use the iron beam and fastened it to the chain to be hoisted and that the accident was due to his negligence in selecting a chain which manifestly was unfitted for this work, although proper ropes for holding the beam had been provided by the plaintiff's employer, and in adopting an improper method of fastening the beam to the chain, and there also is evidence that the defendant's foreman, in fastening the beam to the chain was acting for the defendant and within the scope of his employment, there being no contention that the plaintiff was not in the exercise of due care, the question of the defendant's liability is for the jury.
In an action by an employee of a construction company, engaged in doing the mason work for a large coal pocket, against an iron company, engaged at the same time in doing the iron work for the same coal pocket, for personal injuries from an iron beam falling upon him when it was being hoisted by means of a derrick furnished and operated by the plaintiff's employer, there was evidence that the defendant's foreman, who was in charge of the iron work at the coal pocket and whose duty it was to select the iron beams for hoisting, attached the beam to the derrick by a chain which was an improper one for the purpose, that there were ropes called straps at hand, the purpose of which was to fasten a beam that was too small for the chain as this one was, and that the defendant's foreman made no use of these ropes. The foreman testified that, being desirous of having this beam hoisted, he told the tag man of the plaintiff's employer who was in charge of the derrick that he wanted the beam, that the tag man told him he was busy but that if the defendant's foreman "would hook on to the beam" he would hoist it for him, that the foreman then put the chain around the beam, and, while attempting to take two turns with the chain, told the tag man that he did not have chain enough and asked him to give him more, but that the tag man said that there was chain enough, that one turn was enough to put around the beam and refused to give him more chain, that thereupon the foreman took one turn around the beam, fastened the hook and said, "Go ahead," whereupon the tag man signalled to the engineer to hoist, that the engineer obeyed the order and the beam slipped from the chain and fell on the plaintiff. The judge, among other instructions, instructed the jury that if they found that the defendant's foreman asked for more chain and that the tag man of the plaintiff's employer did not give it to him and said that one turn was enough that would not be an excuse for the defendant's foreman. Held, that this instruction was correct, as, if the accident was due to the negligence of the defendant's servant or agent, the concurring negligence of the other contractor, if proved, would constitute no defence to the action.
SHELDON, J.
On the evidence a verdict could not have been ordered for the defendant.
The jury had a right to find that the work of hoisting the beams was done under the direction of Sears, the defendant's foreman; that the accident was due to his negligence in selecting a chain which manifestly was unfit for this work, although proper straps for the purpose had been provided by the other contractor, and to find that there was negligence in the manner which he adopted of fastening the beam to the chain; and that in what he did he was acting for the defendant and within the scope of his employment. This issue was submitted to the jury with proper instructions, and they were expressly told that if the defendant was not concerned in the hoisting of the beam, and if what Sears did was merely a voluntary performance by him of part of the work of the Morrill and Whiton Company, then the defendant would not be liable. The jury have passed upon this question, and we cannot revise their finding. See Hale v. New York, New Haven, Hartford Railroad, 190 Mass. 84; Melvin v. Pennsylvania Steel Co. 180 Mass. 196. It has not been argued that the plaintiff was not himself in the exercise of due care. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586. Smith v. Baker, A.C. 325.
Nor do we find any error in the specific instructions that were given. If this accident was due to the negligence of the defendant's servant or agent, the concurring negligence of the other contractor, if proved, would constitute no defence to this action. Butler v. New England Structural Co. 191 Mass. 397, 401. Oulighan v. Butler, 189 Mass. 287, 292. Murray v. Boston Ice Co. 180 Mass. 165, 168. Boston Woven Hose Rubber Co. v. Kendall, 178 Mass. 232, 236, 237.
The instructions given required the jury, in order to return a verdict for the plaintiff, to find that Sears was acting within the scope of his employment by the defendant, and in no way had become the servant of the Morrill and Whiton Company. The criticisms made upon them by the defendant's counsel are not well founded, and the decisions cited by him are not applicable to the facts settled by the jury.
Exceptions overruled.