Lyons v. Sommer
John Lyons v. Adolph Sommer
Opinion of the Court
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Rugg, C.J.
This is an action of tort by an employee to recover compensation for personal injuries alleged to have been received in the course of his employment through the negligence of a fellow employee. There was evidence tending to support the allegations of the declaration as to the cause of injury. The defendant was not a subscriber under the workmen’s compensation act and hence cannot show in defence that the plaintiff was negligent or that his. injury was caused by the negligence of a fellow employee. The evidence need not be narrated. *235 There was evidence tending to show that the injury was received through the negligence of a fellow employee acting within the scope of his employment. Apparently the cause of the injury was that two employees instead of four were undertaking to move a piece of iron too heavy for their strength. No discussion is needed to demonstrate that the case at bar is governed in principle by Bernabeo v. Kaulback, 226 Mass. 128 , and is distinguishable from Ashton v. Boston & Maine Railroad, 222 Mass. 65 . There are no facts on the present record which require a finding of contractual assumption of risk on the part of the plaintiff.
Order dismissing report affirmed.
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