Baggneski v. Mills , 193 Mass. 103 ( 1906 )

Hammond, J.

While the evidence was conflicting and would have warranted a finding for the defendant on several matters essential to the maintenance of the plaintiff’s case, still we cannot say as matter of law that it did not warrant findings that the plaintiff, being at the time of the accident in his sixteenth year, believed that the mule was stopped for the purpose of being cleaned, and was justified in that belief; that it was the plaintiff’s duty then to clean it, and that in the performance of that duty he proceeded to clean it; that he did not know and had no reason to think that repairs were to be made upon the mule while he was cleaning it; and that while thus at work he exercised due care according to the lights he had.

The evidence further warranted findings that L’Heureux was a person whose principal duty was that of superintendence, (Malcolm v. Fuller, 152 Mass. 160; Prendible v. Connecticut River Manuf. Co. 160 Mass. 131; Knight v. Overman Wheel Co. 174 Mass. 455, and cases therein cited,) and that he was negligent in his duty to the plaintiff in permitting the carriage to be moved without taking some steps to ascertain where the plaintiff was and, if necessary, to give him notice in time to save himself. Such findings are sufficient to maintain the plaintiff’s case.

The plaintiff under the statute upon which the third count is based did not assume the risk of this carelessness of L’Heureux. “ The risk which the workman assumes by virtue of his contract Of employment does not include the risk arising from the negligent act of a superintendent.” Murphy v. City Coal Co. 172 Mass. 324, 327, and cases cited.

Exceptions overruled.