Smith v. Peach

Braley, J. The plaintiff before he can recover must establish either that the defendant’s foreman in discharging the gun acted within the scope of his employment, or that the defendant himself was negligent in leaving the loaded gun in his office. Upon the evidence neither proposition can be maintained. The defendant, who kept a livery stable, employed the owner of the gun as his foreman and driver, by whom, while exhibiting 506 the gun. to a friend, the cartridge was exploded. Beyond this general statement, and the fact that he gave orders to the teamsters, nothing further is stated as to the foreman’s duties. It is manifest, that the defendant neither kept nor used the gun as an instrument in the prosecution of his business, and the act of the foreman in taking it apart was outside of any service either directly or incidentally connected with his employment. He was engaged in handling his property as an affair of his own. Obertoni v. Boston & Maine Railroad, 186 Mass. 481, 483, and cases cited. Berry v. Boston Elevated Railway, 188 Mass. 536. Collins v. Wise, 190 Mass. 206. If, through the defendant’s failure to take proper precautions to-guard against a danger which he ought to have foreseen, the gun, while on the defendant’s premises and in his custody, had been taken and accidently discharged by an intermeddler to the injury of the plaintiff, who was lawfully in the stable as an employee, a different question would be presented. Lane v. Atlantic Works, 107 Mass. 104. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, 344, and cases cited. It is true, that at his request the magazine gun had been left for the defendant’s use, and, when the owner resumed possession after having been informed by him that it had been used for the purpose for which it had been borrowed, he very likely assumed that the cartridge had been exploded. But even then, the efficient cause of the plaintiff’s injury was not the remote neglect, if any, of the defendant seasonably to give this information that the gun still remained charged, but the act of the owner, who was the wrongdoer, in deliberately taking the gun apart without first ascertaining whether it was in the same condition as when lent. McDonald v. Snelling, 14 Allen, 290. Carter v. Towne, 103 Mass. 507. Glassey v. Worcester Consolidated Street Railway, 185 Mass. 315. Lebourdais v. Vitrified Wheel Co., ubi supra. Exceptions overruled.