Saures v. Stevens Manufacturing Co.

Sheldon, J. The verdict in favor of the plaintiff was rendered upon the third count of her declaration ; and it is only upon that count that the questions raised by this bill of exceptions are to be considered. They, arise upon the defendant’s contention that the plaintiff’s intestate, Antone Saures, was acting outside the scope of his employment and not as a servant of the defendant when he was injured ; that he was not shown to have been in the exercise of due care; and that there was no evidence that his injury was due to negligence on the part of the defendant. The case is a close one as to each of these questions; but if there was any evidence upon which they could be submitted to the jury we cannot revise the finding which has been made. Hayes v. Moulton, 194 Mass. 157, 163, 164. 1. There was evidence upon which the jury could find that Saures, the plaintiff’s intestate, was employed by the defendant [548] in its bleaching room, to clean up and do general work; that on the morning of the accident a rat was found in the bleaching room, and that Heddleston, the second hand, who was in charge at the time, gave an order to catch the rat, but the rat got through a hole in the floor into a vat in the cellar, in which cloth was being soaked and cleansed in an acid mixture; that Saures, seeing this, in order to prevent the cloth from being spoiled, took off his clothes, put on his overalls, went into the cellar, and, for the purpose of getting the rat out of the vat, took an electric light which hung from the ceiling of the cellar and which the men were accustomed to take and carry around the vats; and that he was injured by a shock of electricity from the lamp or its wires, which caused his death. The testimony to these facts consisted mainly of statements of Saures himself, admitted apparently without objection under R. L. c. 175, §66. The defendant’s counsel has addressed to us an able argument in support of his contention that from these facts Saures must be deemed to have been a mere volunteer in going into the cellar to find' the rat; that the order given by Heddleston to “catch the rat ” was rather an ejaculation such as all the men were making than an order given in the conduct of the defendant’s business ; that if it could be considered an order it applied merely to the situation that existed while the rat was running about the floor of the bleaching room, and could not properly be interpreted as a command to go down cellar, take the light arid fish the rat out of the vat, especially in view of the fact that the words were addressed to all present, but no one other than Saures went further than to join in the present pursuit of the rat in the bleaching room. Gouin v. Wampanoag Mills, 172 Mass. 222. Desautels v. Cloutier, 189 Mass. 349. Bamford v. G. H. Hammond Co. 191 Mass. 479. But we are of opinion that this question was for the jury. It was for them not only to find whether what was said by Heddleston was an order to the men, but to determine its purport and meaning. They might say that the act of Saures in changing his clothes and going into the cellar was in the presence and met the approval of the second hand, and that this bore upon the scope of his previous order. And the defendant’s con [549] tention that Heddleston upon his own uncontradicted testimony-had no authority over the cloth in this vat and no control over Saures, and so that the defendant was not bound by his order if given, is disposed of by the fact that the jury were not bound to accept this testimony even though uncontradicted. And Hathaway, the defendant’s overseer, though called by it to testify, did not deny that Heddleston was the second hand, or that he gave orders in Hathaway’s absence. It was for the jury to say whether this included a merely transient or temporary absence. And on the evidence it could not be said that Saures was not acting within the scope of his duty in taking the electric light to see whether the rat was still in the vat, and if so, to get it out. This whole question was for the jury, and the defendant’s fourth and fifth requests were properly refused. Patnode v. Warren Cotton Mills, 157 Mass. 283, 287. Mehan v. Lowell Electric Light Co. 192 Mass. 53, 59. 2. Nor could the defendant’s third request have been given. We already have seen that it could have been found that Saures was properly in the cellar and had a right to use the lamp. It also might have been found that this was a portable light, provided and intended to be uséd around the vats. The burns upon the plaintiff’s hands and the absence of any such cuts as would probably have been caused by the broken glass if he had had the bulb in his hands and had thus broken it, would tend to indicate, in connection with the testimony as to previous leaks from the wires, that he did not have the bulb in his hands, but was using the lamp in the usual and ordinary way. Victoria Martins, a witness called by the defendant, testified to Saures’ statement that he took hold of the wire and not of the bulb. Nor were the jury bound to believe that whenever a witness spoke of “ the lamp ” he referred to the glass bulb alone in contradistinction to the whole arrangement of wires, bulb and socket which together, according to common speech, constituted the lamp. While the evidence was no doubt meagre, it cannot be said that there was no evidence as to the cause of the accident within the rule of McCarty v. Clinton Gas Light Co. 193 Mass. 76, and cases there cited. Most of the specific contentions made here by the defendant were rather for the jury than for us. In our opinion this question was properly submitted to the jury. [550] Meehan v. Lowell Electric Light Co. 192 Mass. 53. And for the' same reasons and in view of the character of the risk and the fact that Saures seems to have known nothing as to the condition of the lamp or its connections, it cannot be said that he had assumed the risk of the accident which happened. 3. The most difficult point in the case is upon the question of the defendant’s negligence; but upon careful consideration of the evidence stated in the bill of exceptions we are of opinion that this question also was for the jury. If the plaintiff received his shock directly from the wire, as the jury might have found, this would indicate that there was a leakage of electricity resulting from a defective condition of the insulation, the wiring, or the electrical connections, or all of them. This would not be enough to hold the defendant without further evidence of its negligence. Saxe v. Walworth Manuf. Co. 191 Mass. 338. Meehan v. Lowell Electric Light Co. 192 Mass. 53, 60. But there was further evidence. From the testimony of Cobral and Rezeins as to the shocks received by them, it might have been found that the same defects had existed, though in a less serious form, for three weeks before the injury to the plaintiff’s intestate. Upon the testimony of Hart, Clifford and Dunlap, it might have been found that by proper tests the defect might have been discovered and remedied, and that such tests ought to have been made. The defendant’s superintendent testified that he did not know what insulating material had been used where the wires entered the socket of this lamp, and could not state whether there had been any inspection of this wire since its installation. Dunlap, the defendant’s chief engineer and electrician, testified that it was his practice to examine the electrical apparatus with a torch or candle “ to find out if there were any loose connections, any pulleys rubbing against the wires, if there were any wires too near to a pulley or too near to a pipe, and for bare places in the wire.” It cannot be said as matter of law that such examinations came up to the standard of the systematic weekly tests which the defendant’s expert witness Clifford testified on cross-examination “ would be ample and desirable.” Plainly it was for the jury to say both what inspections were made and whether they were sufficient in number and in character. Accordingly the defendant’s second request could not [551] have been given. Cahill v. New England Telephone & Telegraph Co. 193 Mass. 415. It follows from what has been said that the first request was properly refused, and the case was rightly submitted to the jury. Exceptions overruled.