Cavagnaro v. Clark

Barker, J. 1. Whether the plaintiff was guilty of contributory negligence was a question for the jury. The evidence would warrant a finding that when he attempted 'to put his wheelbarrow upon the elevator platform, the platform was standing at the level of the floor, and that its descent had not yet begun. Assuming that he knew that the superintendent who stood on the platform had placed himself there to be lowered with the platform, and that it was the custom when any person so placed himself on the platform for any one standing near to press the button as a signal for the engineer below to lower the platform, and that there was always an interval between the pressing of the button and the beginning of the descent, so that the signal to lower might have been given before the plaintiff came with his wheelbarrow, he testified that he asked Smith, the superintendent, if he bad room to put his wheelbarrow on, and that Smith replied that there was not much room. From this reply the jury could find that the plaintiff understood the superintendent to assent that the plaintiff should put the wheelbarrow on, and that the plaintiff could reasonably infer that he could safely proceed, especially if he had not heard the previous warning to “ stand clear.” 2. It was also a question for the jury whether the plaintiff’s injury was due to the negligence of a “ person in the service of the employer, intrusted with and exercising superintendence,” within the meaning of St. 1887, c. 270, § 1, cl. 2. So far as appears, the sole duty of this superintendent was that of superin [366] tendence, and in riding upon the elevator from the floor of the building on which he stood to a lower floor he was acting in the service of his employer. He testified that he jumped upon the elevator and said, “ Let her go,” and that thereupon a workman who was standing near the button, rang three bells and shouted, “ Stand clear,” and that a minute or so later the elevator started down, and that the first he knew of the plaintiff’s being near was when he turned and. saw the plaintiff falling. The order, “ Let her go,” was itself an act of direction or oversight, tending to control others, and to vary their situation or action because of his direction. Cashman v. Chase, 156 Mass. 342. Having given the order, and seen that it was followed by the signal the giving of which would cause the elevator to descend, it would be his duty to countermand his order and to take means to prevent the elevator from going down, if after the giving of the signal he had reason to suppose that another person was about to attempt to put a'wheelbarrow upon the platform, and that he had such reason might be found from the plaintiff’s testimony. This duty of countermanding the order which he had given, or of taking some means to prevent the injury of a workman whom he knew was about to put himself in danger by doing an act which would have been safe but for the fact that the elevator was about to go down, was itself a duty of superintendence, a duty to perform an act of direction or oversight tending to control others, and which his position as superintendent required him to give, and made it negligence in his work of superintendency not to give. McCauley v. Norcross, 155 Mass. 584. If he had been merely an ordinary fellow workman with the plaintiff, the acts which he did and those which he ought to have done, both in ordering that the elevator should be sent down, and in ordering that the signal to lower should be countermanded, or in ordering the plaintiff not to proceed when he found that the plaintiff was about to put on his wheelbarrow, would have been in effect acts of superintendence. In that case the defendant would not have been liable for these acts of superintendence, because they were not acts of any person intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, and the employer is not made answerable by the statute for acts of superintendence negligently performed in [367] his service by an ordinary workman, or by one who is both workman and superintendent, in making declarations which may be interpreted either as orders of a superintendent or as assurances of a fellow workman, if in fact they are merely such assurances. Whittaker v. Bent, 167 Mass. 588. In the present case the superintendent had no other duty than that of superintendency, and when he negligently gave orders, or negligently omitted to give them when required by his position, his employer is answerable. In the opinion of a majority of the court the entry should be, Exceptions overruled.