Flynn v. Boston Electric Light Co. , 171 Mass. 395 ( 1898 )

Barker, J.

Assuming that Grant’s principal duty was-that of superintendence, he was also a workman laboring with his own hands, and the defendant is not made answerable to the plaintiff for Grant’s negligence except in the exercise of his superintendence. We are of the opinion that the evidence would not justify a finding that any negligence in his exercise of superintendence contributed to' the plaintiff’s injury.

A wire had been passed through the branches of a tree into which the plaintiff was sent to cut off a limb. When cut, this lodged upon another lower down, and then the plaintiff, standing upon the lower limb, made a second cut in the one which had fallen from above, and it fell to the ground. Assuming that it was his duty to remain longer in the tree, there is nothing to justify a finding that the order then given to pull the wire back was negligent.

The wire was not then caught, and the plaintiff was himself then in a position to see what would probably be the effect of pulling the wire back. This order is the only act of Grant which could be found to be an act of superintendence connected with the accident. His helping the other workmen to pull was merely the act of a workman, and had in it no element of superintendence. When the wire was pulled, it caught upon the limb, the limb shook, and the plaintiff then called out to stop pulling, but before he had time to get into a safe position the limb broke. It is plain that the plaintiff was in a position to know and to judge of his own safety, and if the pulling back of the wire, which was naturally the next thing in order after the limb which he had been sent into the tree to cut off had finally fallen, would put him in peril, he himself should give warning. Grant could not be found negligent in not perceiving the danger which the plaintiff himself did not perceive, and of which he did not give warning. When the danger became apparent, it was too late to avert the accident.

We also think that the refusal of the court to admit the opinion of an electrical expert as to whether the method of dealing with the wire was a proper one, and what the usual method is of running a wire from one pole to another when there is a tree between the poles, was correct. That the wire was intended for the transmission of electricity was immaterial.

The work of stringing wares from one pole to another through branches of an intervening tree is one within the range of ordinary intelligence and observation, involving only matters of ordinary knowledge and experience, such as men in general understand and comprehend without expert assistance, and as to which technical experience would not be instructive. See Higgins v. Dewey, 107 Mass. 494.

Exceptions overruled.