
    John J. Dunphy vs. Boston Elevated Railway Company.
    Suffolk.
    November 23, 24, 1905.
    June 21, 1906.
    Present: Knowlton, C. J., Morton, Hammond, Loring, & Sheldon, JJ.
    
      Negligence, Employer’s liability. Elevated Railway.
    
    In an action against an elevated railway company by a workman in its employ for personal injuries, if it appears that the plaintiff was put at work by a superintendent of the defendant upon a track on a loop of the defendant’s elevated structure over which trains frequently were passing, both the superintendent and the plaintiff knowing it to be a dangerous place, that the plaintiff looked up to see whether a train was approaching and the superintendent, who was standing near, saw him do it and said “ All right, Jack,” that thereupon the plaintiff went on with his work and was struck and knocked off the track by a passing train, and was injured, that an approaching train could be seen one hundred and fifty feet away, and that the superintendent as he stood there was doing nothing and gave the plaintiff no warning of the approach of the train; this warrants a finding that the plaintiff was justified in assuming that the superintendent was looking out for him and in acting accordingly, and therefore was in the exercise of due care, and also warrants a finding that the superintendent was negligent.
   Morton, J.

The plaintiff was struck and knocked off the track by a passing train while working in the defendant’s employment on the loop at the Dudley Street terminal station of the defendant’s railway in Boston, and this is an action to recover for the injuries thereby received. The declaration contained five counts, the first being at common law and the others under the employers’ liability act. The second count was for injuries caused by negligence on the part of a person entrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. The case was submitted to the jury on this count only, the judge ruling that there was no evidence entitling the plaintiff to recover under the other counts. There was a verdict for the plaintiff, and the case is here on the defendant’s exceptions.

We think that the ruling was right. The plaintiff was set to work by Boyd, the superintendent, in what both knew to be a dangerous place. According to the plaintiff’s testimony he looked up to see if a train was approaching, and Boyd, who was standing near, saw him do it and said “ All right, Jack,” and the plaintiff went on with his work. This, if believed, warranted the jury in finding that the plaintiff was in the exercise of due care and was justified in assuming that Boyd was looking out for him and in acting accordingly. The evidence showed that an approaching train could be seen one hundred and fifty feet away and that Boyd stood there with nothing to do, but gave the plaintiff no warning of the approach of the train that struck him. This warranted a finding of negligence on the part of Boyd. It was not contended that Boyd was not a superintendent. See Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532; Scullane v. Kellogg, 169 Mass. 544; Greenstein v. Chick, 187 Mass. 157; Lynch v. Stevens & Sons Co. 187 Mass. 397.

C. F. Choate, Jr., for the defendant.

H. E. Bolles, (H. M. Channing with him,) for the plaintiff.

Exceptions overruled.  