Conroy v. G. W. & F. Smith Iron Co.

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, [1891] 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. [476] 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.