Brittain v. West End Street Railway Co.

46 N.E. 111, 168 Mass. 10, 1897 Mass. LEXIS 137

Opinion

Allen, J.

According to the plaintiff’s testimony, the accident happened in consequence of the starting of the car, and this he contended was in consequence of Hadley’s negligence. Assuming this to be so, it is quite plain that Hadley was not exercising superintendence, but was merely acting as motor man, or as a fellow servant of the plaintiff. There was no evidence tending to show that the plaintiff’s injury was received by reason of the negligence of any person in the service of the employer, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, as required by St. 1887, c. 270, § 1, cl. 2. Cashman v. Chase, 156 Mass. 342. Fitzgerald v. Boston & Albany Railroad, 156 Mass. 293. Adasken v. Gilbert, 165 Mass. 443.

It was within the discretion of the court to decline to reopen the case for further examination of the witness. The matter sought to be inquired about was immaterial, upon the real question in the case. u

Exceptions overruled.