Gilmore v. Mittineague Paper Co.

Knowlton, J. The first exception is to the ruling that there was no evidence for the jury under the first and second counts of the declaration. 1. It is very clear that there was no evidence under the second count, alleging the existence of a defect in the ways, works, or machinery of the defendant, and the exception to this part of the ruling has not been argued. 2. The only contention of the plaintiff in regard to the first count, which is at common law, is that the jury might have found the defendant to have been negligent in employing Fannie Duval, an incompetent servant. But there was no evidence that she was incompetent. Her only connection with the accident was through her failure to shift the belt from the tight pulley to the loose pulley, and so to stop the threshing machine, when she discovered the fire, and before the superintendent had time to stop it by shutting off the power from the room. There is nothing to indicate that she did not thoroughly understand the management of the machine and was not perfectly competent to run it from time to time, as she was directed to do. When she saw the fire she quickly gave the alarm, as any one would, running part way to the desk of the superintendent, which was in the room. If her doing this without first stopping the machine, or if her failure to shift the belt and stop the machine after-wards, before the superintendent could shut off the power from the room, be deemed negligence, it was negligence of a fellow servant of the plaintiff, for which the defendant is not liable, and it has no tendency to show that she was an incompetent [476] servant. There was uncontradicted evidence that she often shifted the belt in running the machine, and was perfectly competent to do so; that she had not strength to shift the belt after the machine was stopped until the power was turned on, was immaterial. If the superintendent had noticed that the belt was on the tight pulley after the machine was stopped, he would not have turned on the power while the plaintiff was in the machine; and if the plaintiff had noticed it, he probably would not have entered the machine, at least without becoming certain that the power would not be turned on. . 3. The evidence in regard to instructions to Fannie Duval was rightly excluded. There is nothing to show that she needed any instructions for the proper performance of her regular duties, and the defendant was not called upon to instruct its ordinary employees in regard to their conduct in so unexpected an emergency as the discovery of a fire. The admissions of Moses, who was the general manager and treasurer of the defendant, not made in the performance of his duty as such treasurer, were incompetent. Richstain v. Washington Mills Co. 157 Mass. 538. Wellington v. Boston & Maine Railroad, 158 Mass. 185. Toy v. United States Cartridge Co. 159 Mass. 313. The offer of Farrell’s testimony, that turning on or shutting off the power was an act of superintendence, was rightly rejected. Apart from other reasons for the ruling, it is enough to justify it that the witness at the time of the accident had worked in the room only one day, and did not know the defendant’s custom and method of business in this particular. Exceptions overruled.