Curran v. Merchants' Manufacturing Co.

Soule, J.

The plaintiff in the first count of his declaration alleges that he was injured because the defendant, his employer, managed its machinery so negligently and carelessly that it was unsafe and dangerous. In the second count, he alleges that he was taken from the work for which he was employed, and set to cleaning out the gearing of a mule frame, which was an unusual employment for him, in which he was not instructed or skilled, and was to be attended to in an unusual place for him to work; that the gearing was still and in a safe condition for him to work on it, but while he was so at work it was carelessly and negligently set in motion by the defendant, and his hand was hurt; and that the defendant knowingly and carelessly employed unskilful, inexperienced and incompetent overseers or men in charge, by whose act the machinery was set in motion.

It is clear, therefore, that the action does not proceed on the ground that the machinery was unsuitable for the purpose for which it was intended, nor that it was not in good running order. The foundation of the action is negligence on the part of the defendant in managing its machinery, the only negligence specifically stated being in knowingly and carelessly employing unskilful and incompetent overseers or men in charge, by whose act the "machinery was started.

It is familiar and well-settled law in this Commonwealth, that an employer is not liable to his servant for injuries caused by the negligence of a fellow-servant. The plaintiff was evidently aware of this principle, and inserted the allegation that the defendant knowingly and carelessly employed unskilful and in *375 competent overseers, in the hope of bringing his case within the other principle of law, which imposes on employers the duty to his servants not to employ as their fellow-servants persons who are known to be unskilful and incompetent, when such want of skill and ability may expose the servants to danger of bodily injury, which would not exist if skilled persons only were employed as their fellow-servants.

The only question presented by these exceptions, therefore, is whether there was any evidence which would warrant a jury in finding that the defendant did knowingly and carelessly employ incompetent overseers or persons in charge, and that the hi jury to the plaintiff resulted from such employment. We are of opinion that there was none. There was nothing to show that Richard Smith was incompetent for the position of overseer, that James Smith was incompetent for the place of second hand, or that Cox was not fit to be promoted from the place of back-boy to that of spinner. It appears that Richard Smith had been in authority in the mill during the whole of the two and a half years of the plaintiff’s employment there, that James had been a spinner before he was made second hand, and that second hands are made by the promotion of spinners, and that Cox had been doing boys’ work before he was made a spinner, and there was no evidence whatever tending to show, or which the plaintiff contended had any tendency to show, that either of these persons, who were the only persons employed in the room where the plaintiff worked at the time of the accident, had ever shown any lack of skill or efficiency in the performance of the duties of their respective positions before the accident occurred in which the plaintiff was hurt.

It was contended at the argument, that the case was taken out of the ordinary line of cases in which the servant is an adult by the fact that the plaintiff, who was fourteen and a half years of age, and had worked in the mill two and a half years, was of tender years, and was set to work 'in an unusual place, doing what he was not accustomed to do. But the evidence was (hat the work he was doing was precisely like what he had been accustomed to do from time to time during the whole term of his employment by the defendant, and that his injury did not proceed from the fact that he was working > *376 dangerous proximity to other machinery over which he had no control. This case has no similarity, therefore, in this respect, to that of Coombs v. New Bedford Cordage Co. 102 Mass. 572 , on which the plaintiff relied.

G-. Marston f J. W. Cummings, for the plaintiff, cited Coombs v. New Bedford Cordage Co. 102 Mass. 572 ; O' Connor v. Adams, 120 Mass. 427 . A. J. Jennings, (J. M. Morton, Jr. with him,) for the defendant.

Exceptions overruled.