Moore v. Curran

Hammond, J. There was evidence that the tub, having been hoisted perhaps a little higher than usual, stuck, and that while the engineer was attempting to lower it, it suddenly fell upon the staging with such force as to break it down; and the plaintiff’s intestate, who was standing upon the staging, was precipitated into the hold of the vessel, thereby receiving injuries which resulted in his death. There was no evidence of the incompetency of the engineer, nor of a failure to maintain machinery and appliances in proper repair. The machine always had worked well, and immediately after the accident continued to work well. There is no contention by the plaintiff that it was not suitable for the purpose if in proper repair. If there was any negligence it was that of the engineer in the manner in which he handled the “ friction ” and the brake. It is urged that, the regular superintendent being absent at the time of the accident, White was acting superintendent, and hence the defendants were responsible for his negligence. But the manual labor of running the engine was not an act of superintendence. As to that he was a fellow servant. Nor does the evidence warrant the conclusion that [63] the decision to start the engine in a proper way was a negligent act. See McPhee v. New England Structural Co. 188 Mass. 141, and cases cited, for illustrations of the difference between acts which are of superintendence and those which are not, so far as material to the liability of an employer. There being no evidence of negligence of the defendants, the order directing a verdict for them was right. Exceptions overruled.