Fried v. Bay State Dredging Co. , 227 Mass. 135 ( 1917 )

Crosby, J.

The plaintiff, while employed by the defendant as an engineer upon a dredge in Portland Harbor in Maine, received personal injuries for which he seeks to recover damages in this action. At the defendant’s request the presiding judge ordered a verdict for the defendant upon the first, third and fourth counts of the declaration, but declined to do so upon the second count, which was a count under the employers’ liability act of the State of Maine (Laws of Maine 1909, c. 258) alleging the negligence of a superintendent. The statute under which the plaintiff seeks to recover is substantially identical in language with the Massachusetts employers’ liability act (St. 1887, c. 270) as amended. St. 1909, c. 514, § 127, cl. 2.

The duties of the plaintiff were to take care of the boiler fires, to clean and oil the engines and to keep them in repair. He and the other employees upon the dredge were under the charge of the captain, one Benson, “from whom all took their orders and who had charge of said dredge and its operations, and who might be found to be a superintendent within the meaning of said employers’ liability act.” Benson operated the engines by levers located in a "running room” in the upper forward part of the dredge. The engine in question was the main engine. When it was in operation the whole dredge rocked like a ship in a storm (which fact was known to Benson and the other employees including the plaintiff), and for this reason certain parts of the engine could not be oiled in safety when the engine was in operation because the person so oiling would be in danger of being caught in the gears. At the time of the accident, which was directly after the nine o’clock lunch had been served to the men, the plaintiff was oiling the central bearing of the' main engine, when without warning the captain suddenly started the engine, the dredge rocked, the plaintiff was thrown forward, and his hand was caught in the gearing, causing the injuries for which he seeks to recover.

There was evidence to show that it was customary to oil the central bearing of the main engine each day after breakfast, after nine o’clock lunch, and after dinner at noon; and that the engine never was started after one of these meals until the plaintiff had notified the captain that all was clear and that he (the plaintiff) was in a position of safety. It also appeared that the captain when in the “running room” by looking could see where the plaintiff would stand in the engine room at the time of the accident. It is plain that the plaintiff’s injuries were caused by the starting of the engine without notice. It might have been found that, in view of the custom of the plaintiff to notify Benson when it was safe to start the engine, it was the duty of Benson, as superintendent, not to start the engine until he had received such notice.

While, as the defendant argues, the starting of the engine was an act of manual labor, still it was preceded by the determination to start it without notice from the plaintiff and without ascertaining whether it was safe to do so. Such a decision on the part of Benson could have been found to be an act of superintendence and, as such, a negligent act. O’Brien v. Look, 171 Mass. 36. Murray v. Rivers, 174 Mass. 46. Roche v. Lowell Bleachery, 181 Mass. 480. Meagher v. Crawford Laundry Machine Co. 187 Mass. 586. McPhee v. New England Structural Co. 188 Mass. 141. Silvia v. New York, New Haven, & Hartford Railroad, 203 Mass. 519. Mooney v. Benjamin F. Smith Co. 205 Mass. 270. Kushnizki v. New England Biscuit Co. 210 Mass. 177. Rhoades v. Varney, 91 Maine, 222. As the negligence complained of could have been found to be the result of an act of superintendence as distinguished from an act of manual labor, such cases as Cashman v. Chase, 156 Mass. 342, Sarrisin v. S. Slater & Sons, 203 Mass. 258, Buckley v. Dow Portable Electric Co. 209 Mass. 152 and Bedard v. Nonotuck Silk Co. 210 Mass. 361, are not applicable.

It could not have been ruled that the plaintiff was not in the exercise of due care or that he assumed the risk of injury, and we do not understand the defendant to contend to the contrary. In accordance with the terms of the report, judgment should be entered for the plaintiff in the sum of $2,500.

So ordered.