Sandon v. Kendall , 233 Mass. 292 ( 1919 )

De Courcy, J.

The plaintiff seeks damages for the death of her intestate, JosephE. Bergeron, who was struck by a falling “ginpole,” receiving injuries from which he died without conscious suffering. There was evidence to warrant the finding of the following facts:

The defendant had a contract to erect poles and wires for an electric line from Uxbridge to Milford. He engaged one Newell, who was in the teaming business, to unload the poles from the cars in the railroad yard at Uxbridge, and to carry them to designated locations. A gin pole was used for lifting the poles from the car and putting them upon a wagon or “reach.” This pole was like a single mast derrick without guys; it was twenty-five to twenty-eight feet in length, was set in a hole in the ground eighteen inches to two feet deep, and was secured to the railroad track and to the car by chains. In the process of the work of unloading it became necessary to move the partially unloaded car. The defendant was not there at the time, but one Lee, his only employee on the job, gave orders to have the car moved and told Newell’s men to hitch on the horses to the front of the car. Two of Newell’s men were there at the time, Paine and Gray. The chains were taken off, and the gin pole was pried away from the car about two inches, to enable them to move the car by the pole. Bergeron, who was not in the employ of either party, came along, and Gray asked him to “give us a hand.” Bergeron put his shoulder to the car, and was pushing it with the other men when the pole fell and struck him, fatally injuring him.

The questions of the intestaté’s due care, and his assumption of the risk, plainly were for the jury, and the burden of proof was on the defendant.

There was evidence to warrant a finding that the accident was due to Lee’s negligence. He gave the orders to move the car without taking down the unsupported gin pole, as was customary, and without taking any precautions to prevent its fall, although it showed signs of being unsteady.

The jury could find also that Lee was acting within the scope of his employment in giving directions to move the car. Newell, who was an independent contractor, testified, “we had nothing to do with moving the cars, we simply unloaded the poles;” and Smith, the representative of the defendant who engaged Newell, testified that he “asked . . . where he [Newell] wanted the car left to be convenient for unloading and said he would have it placed wherever Newell wished.” Lee was the only representative of the defendant on the job. The jury could infer that he had at least implied authority to attend to the moving of the car. They were not obliged to accept the testimony that his only duty was to show Newell’s men where' to place the poles. In fact Newell testified that Lee was “in charge of this team,” that “he [Newell] told his men when they left the stable to do what the man in charge told them,” and that he" heard Lee give orders to these men.

As the defendant argues, the case did not go to the jury on the theory of the workmen’s compensation act with the defences removed; and if Bergeron became in fact the fellow servant of Lee the defendant would not be liable, under the present declaration, as the negligence relied on would be that of a fellow servant. In this connection the judge gave the defendant’s fifth request, and called to the jury’s attention the theory on which the plaintiff was proceeding in the case, “that it was not Lee who called for Bergeron but that it was Gray, one of Newell’s employees, who called him for help, and that then Bergeron having been called on the job by Gray stands in the same position with regard to the employer of Lee that Gray would himself have stood in if he had been hurt.” We cannot say as matter of law that there was no evidence to warrant this contention of the plaintiff. If Bergeron undertook to assist Gray in performing service which it was Gray’s duty to perform under Lee’s orders, then the jury could find that he (Bergeron) stood in the relation of a fellow servant of Gray while engaged in such service, and that he did not become a temporary servant of the defendant. Barstow v. Old Colony Railroad, 143 Mass. 535. Flynn v. Boston & Maine Railroad, 204 Mass. 141, 144. See Berry v. New York Central & Hudson River Railroad, 202 Mass. 197, 202. The mere fact that Gray, acting under the general instruction of his employer Newell, rendered assistance to Lee, did not constitute him a fellow servant of Lee. Sprague v. General Electric Co. 213 Mass. 375, 378. And the jury could find that Gray had implied authority to procure the temporary assistance of Bergeron in the necessary act of moving the car, which the three men present were unable to move, and when no other employees of the defendant or of Newell were available. Hollidge v. Duncan, 199 Mass. 121, 123. See L. R. A. 1915 F 1125 note. In responding to the request of Gray, Bergeron was not a mere volunteer or licensee.

The defendant’s first, fourth, seventh, ninth, tenth and eleventh requests were denied rightly. The others, so far as applicable to the plaintiff’s case as submitted to the jury, were properly covered by the charge.

Exceptions overruled.