Robertson v. Hersey

Rugg, J. There was ample evidence that the plaintiff was in the exercise of due care, and that he did not assume the risk [530] of injury arising from the use of the compound pry, the slipping of which caused the damage for which this action is brought. A part of the plaintiff’s work was to assist in moving the pile driver, so that it could be used in its work. A stick of timber was used as a pry for this purpose, but at the time of the accident the single lever did not furnish sufficient power, so that another, with one end under an adjoining wall or stone as fulcrum, was put on the end of the first stick of timber, in order to increase the leverage. The likelihood that this pry would slip cannot be said to have been so obvious that one not familiar with its use, who never had seen it slip, can be held to have assumed the risk. The chief question is whether there was sufficient evidence that McArthur, by the direction of whom the compound pry was used, was a superintendent “ whose . . . principal duty was that of superintendence,” within the meaning of these words as used in the employers’ liability act, R. L. c. 106, § 71. There was evidence tending to show that McArthur had been working for the defendant about seven years, in charge of pile driving machines, pile driving scows and lighters, and general work of that sort; that he hired the plaintiff, and generally hired and paid the men: that he alone gave orders and directions to the men; that from the defendant he received orders as to where the job was, and generally, after that, made his own plans and carried them out, and that on the job in question he did certain work with the men, and there was certain other work that he did not do, and that he himself solely determined what work he should do, no one directing him in this particular; and that nothing was done by any one, so far as moving the machine was concerned, or the way in which it should be moved or operated except under his direction. He was referred to by the men as superintendent or foreman. In connection with these duties, he worked with the men the same as the others all the time, and his place while the machine was at work was in front of it, keeping the piles straight and giving the directions to the men to keep the machine in position, so that the piles could be driven straight, and that in this connection he frequently was giving orders. His pay was $20 per week, while that of the other men employed was $13.50 per week. [531] There is no single test which can be universally applied to determine whether one’s principal duties are those of superintendence. The sum of a man’s duties is made up of many details, and where the emphasis may fall, in any particular instance, goes far toward determining the question whether he is principally a superintendent or principally a laborer. Oftentimes this emphasis is furnished by the relative amount of time which is spent in manual labor, and that employed in giving directions; but this, although important, is not necessarily decisive. Without selecting any particular duty of McArthur out of the enumeration of responsibilities reposed in him by the defendant as above recited, it is plain that, looking at his work as a whole, his principal duty was that of superintendence. The driving of piles for foundations, with the operation of the machine and the direction of the laborers, skilled and unskilled, necessarily employed in connection with it, requires something more of trust and responsibility than a mere working foreman. Especially is this so when the only responsibility assumed by the employer was to deliver to McArthur the job that was to be done, and leave all the rest of it to him to do. The hiring of men, which involves the fixing of their compensation, the discharging and paying of them, are acts of superintendence, and not of labor. It appears also that it was constantly necessary during the day for McArthur to give orders as to the placing of the piles and the method of driving them as well as respecting the moving of the machine from time to time. The extent and character of manual labor performed by McArthur was wholly within his own discretion, from which the inference follows that this was not the principal, but a subsidiary and incidental part of the work, which he was employed to do. The chief responsibility placed upon him by the defendant was to see that the work was done. If he chose to assist with his own hands, that was a matter entirely of his own volition, and not his principal duty. The fact that McArthur labored so much appears to have been due rather to his spirit of industry than to the duty laid upon him by his employment. His power and duty under his employment were more extensive than those shown as to one held to be a superintendent in Hourigan v. Boston Elevated Railway, 193 [532] Mass. 495. On the whole the jury would have been warranted in finding that he was superintendent within the employers’ liability act. The circumstances bring this within cases like Baggneski v. Lyman Mills, 193 Mass. 103, Murphy v. New York, New Haven, & Hartford Railroad, 187 Mass. 18, Rapson v. Leighton, 187 Mass. 432, and Gardner v. New England Telephone & Telegraph Co. 170 Mass. 156, and not within cases like O’Neil v. O’Leary, 164 Mass. 387, and Mulligan v. McCaffery, 182 Mass. 420. The compound pry was adopted as a method of performing the work by reason of McArthur’s direction, and this may have been found to be an act of superintendence, even though he may have assisted in performing the manual labor necessary to execute his order. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586. McPhee v. New England Structural Co. 188 Mass. 141. Exceptions sustained.