O'Brien v. Rideout

36 N.E. 792, 161 Mass. 170, 1894 Mass. LEXIS 153

• Court: Massachusetts Supreme Judicial Court
• Decided: March 28, 1894
• Status: Published

Opinion

Barker, J.

1. The plaintiff was hired as a common laborer, and the defendant was not present when he was put to work on the saw by the foreman, although th.e witness had seen the plaintiff at work upon it before the day of his injury. On the morning of that day the plaintiff had asked the foreman for permission to saw up some lumber on another saw, and before that day he had worked upon a circular saw six or seven times, three of which were upon the saw which injured him. If, under these circumstances, it was negligent for the foreman to send him to work upon the saw, the negligence was that of a fellow workman. See Moody v. Hamilton Manuf. Co. 159 Mass. 70, and cases cited.

2. The evidence does not justify a finding that the foreman by whom the plaintiff was set to work upon the saw was a person whose sole or principal duty was that of superintendence. He was “ at work pretty much all the time in getting out lumber, or piling it up, or arranging it, and in operating saws.”

Exceptions overruled.