WILLIAM CONNOLLY vs. EDWARD S. BOOTH.

BRALEY, J. The plaintiff while assisting to unload iron girders or beams from the hold of a steamship, had the toes of one foot broken, and lost a finger by a beam falling on him after it had been lifted out and was being moved across the wharf on trucks. A verdict having been ordered for the defendant at the close of the plaintiffs evidence, the ruling now is said by the defendant to have been right, as there was no evidence at common law of the defendant's negligence, or, if the foreman who could have been found to have been acting as superintendent was at fault, his carelessness was the act of a fellow servant, rather than that of a representative of the defendant under R. L. c. 106, § 71, and that, if these defenses are unavailing, then as the danger of injury from the method and appliances used in handling the beam were obvious, the plaintiff must be held to have assumed the risk.

Upon recurring to the evidence, it appears, that in lowering the beam from the ship, the rope of the fall slipped from the top of the swinging boom, and the beam fell flatwise upon the wharf. If the rope had worked properly, the beam, which was of large dimensions, would have been lowered on to a bogie,

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or platform truck, by which it easily could have been moved and unloaded. But before any directions for its removal had been given by the foreman of the gang, of which the plaintiff was a member, the superintendent appeared, and directed the men "to go to one end of the beam, and pick it up with trucks." In obedience to this order, the men took common hand or baggage trucks with projecting blades, which they gradually inserted under the beam until they raised and lifted it upon the trucks, when the superintendent having further directed them "to shove it along," the beam then was wheeled to where it was to be unloaded. During transportation, the plaintiff held the handles of a truck, but when about to unload, he was relieved by the superintendent, who ordered him to help lift or turn the beam over. In obedience to this command, the plaintiff took a position near the centre, where he stood between two trucks, stooped over, placed his hands under the edge, and lifted, but while the beam was being turned or lifted over the wheels, its weight so pressed upon the blades as to cause one of the trucks suddenly to recoil, when the beam fell upon the plaintiff. It further appeared, or the jury would have been warranted in finding, that the bogie trucks previously used for moving this class of freight were not only without handles, or blades, but much more suitable for this purpose. They further could find, that if the beam had been raised by the use of the boom, or by the men on to a bogie truck, and then wheeled away in the accustomed manner, this would have been a more feasible and safer method than the one employed, and if it had been adopted, the plaintiff would not have been injured. At common law, under these conditions, if the defendant had been personally present directing the work, the question whether his conduct was negligent would have been for the jury to decide. Haley v. Case, 142 Mass. 316. By the operation of the statute the defendant is made responsible for the acts of the superintendent, who in their performance still remained his representative, even if, while exercising superintendence, he momentarily held the handles of the truck, whose rebound caused the beam to fall. Feeney v. York Manuf. Co. 189 Mass. 336. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586, 589, and cases cited. In performing his work under the immediate supervision

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and express commands of the superintendent, the plaintiff, who is not shown to have been previously called upon to assist in lifting a beam which had fallen while passing from the ship to the wharf, had the right to rely upon the assumption, that a reasonably safe course had been taken in reloading, and that, while in a position where necessarily he could not fully observe all the details, suitable precautions for his protection would be observed by his superior. It would emasculate the statute, to say, that an employee so situated voluntarily assumes the risk of the negligence of those whom he contracts to obey, and upon whose judgment as to methods when an emergency arises in the performance of his usual duties, he has the right within reasonable limits to depend. Meagher v. Crawford Laundry Machinery Co. 187 Mass. 586, 589, and cases cited. If the plaintiff had failed to prove a cause of action under the counts at common law, as the evidence does not reveal any defect in the wharf or the appliances furnished, he was entitled for the reasons stated to go to the jury upon the statutory count, for negligence of the superintendent. Meagher v. Crawford Laundry Machinery Co., ubi supra.

Exceptions sustained.