Bedard v. Nonotuck Silk Co.

Hammond, J. Even if it be assumed in favor of the plaintiff that the questions whether he was careful, whether the temporary absence of the guard was the proximate cause of the injury and whether there had been a sufficient compliance with the statutory requirements as to the time, place and cause of the injury were for the jury, there was still a fatal defect in his case. There was no evidence of any neglect for which the defendant is answerable. Ho case was made out on the ground that at the time of the accident the machine was defective. The only trouble at the time of the accident was that the guard was not in place. It appeared that one Tower had taken off the guard for the purpose of cutting off the laps of silk which were clogging the rollers, and after he had removed the silk had failed to replace the guard. Tower was a superintendent, but we are of opinion that these were not acts of superintendence. In deciding to clear the machine at that time there was no negligence. It was [364] the proper thing to be done. The negligence, if any there was, consisted not in the decision of Tower as superintendent that the work should be done, but in the manner in which the manual labor was done by him as a fellow servant of the plaintiff in carrying out that decision. And so of the failure to replace the cover and of the act of starting the machine. The case stands in this respect with Flynn v. Boston Electric Light Co. 171 Mass. 395, and similar cases. See also for discussion of the principle involved, McPhee v. New England Structural Co. 188 Mass. 141, and cases cited on p. 144. Nor can the words “ It is' all right, go ahead ” be regarded as words of command under the circumstances. They were a part of Tower’s work as a fellow workman. As stated by Holmes, J., in a similar case, they are “ merely the assurance, in a customary colloquial form, of the fellow workman . . . [who had done the work] . . . that all was safe.” Whittaker v. Bent, 167 Mass. 588, 590. See also McDonnell v. New York, New Haven, & Hartford Railroad, 192 Mass. 538. In no act of superintendence is Tower shown to have been negligent. Exceptions overruled.