Pintorelli v. Horton Hemenway

The only negligence alleged against the defendants is that their foreman, knowing of the peril and danger of the work in question, carelessly and negligently assured the plaintiff that there was no danger to him in unloading the derrick from the wagon.

(1) This is not sufficient to put the defendants to a trial in view of the other facts set out in the declaration. These are, in brief, that it was a rainy day, and that the poles of the derrick which was to be unloaded were wet and slippery. The fact that they were in this condition, and hence liable to slip while being unloaded, was as obvious to the plaintiff as to the defendants’ foreman, and hence no duty was devolved upon the defendants of warning the plaintiff against the danger therefrom. Knowing of the danger, he must be held to have assumed the risk. Moreover, the assurance of the foreman that there was no danger was not within the scope of his authority to give, and hence, although acted upon by the plaintiff, was nothing for which the master was responsible. It was a mere error of judgment on a subject on which the plaintiff had the same means of knowledge as the foreman.

(2) The contention of plaintiff’s counsel that the defendants are liable because the assurance referred to was given by the plaintiff’s superior is untenable, for the reason that in giving it he was not discharging any duty devolved by law upon his principal. And hence his negligence, if such it can properly be called, was the negligence of a fellow-servant. Brodeur v. Valley Falls Co., 16 R. I. 448; Hanna v. Granger, 18 R. I. 507; Larich v. Moies, Ib. 513; Frawley v. Sheldon, 20 R. I. 258; Morgridge v. Telephone Co., 20 R. I. 386.

The declaration does not bring the case within that class *376 of cases where the master is held liable for injuries sustained by the servant while acting in an emergency under the orders of a superior whom he was instructed to obey, and while doing something out of his ordinary line of employment, as was the case in Mann v. Oriental Print Works, 11 R. I. 152. In that case evidence was offered tending to show that when the plaintiff was employed he was given to understand that he was to obey the orders of his superior, the engineer, which clearly differentiates the case from the one before us.

The demurrer is sustained.