Wood v. New Bedford Coal Co. , 121 Mass. 252 ( 1876 )

MORTON, J.

This case falls within the well settled rule of law that one who enters the service of another takes upon himself the ordinary risks of the employment in which he engages, including the negligent acts of his fellow servants in the course of the employment. Coombs v. New Bedford Cordage Co. 102 Mass. 572.

The declaration alleges, as one ground of the defendant’s liability, that it knowingly employed an unskilful and incompetent person as engineer. The plaintiff does not contend that there was any evidence to support this allegation.

The declaration further alleges that the plaintiff was “ negligently set to work by the defendants in and about their machinery and appliances, without any caution or instruction, in an unsuitable and unsafe place, to use and operate and attend unnecessarily dangerous and unsafe machinery and appliances of the defendants.”

The ruling that, under this allegation, the plaintiff could not recover on the ground of the use by the defendant of defective, improper or insufficient machinery, need not be considered, because it is immaterial. The difficulty of the plaintiff’s case is that the evidence clearly shows that the injury to him was caused by the negligent act of a fellow servant. There was no evidence that the platform, on which the plaintiff worked, and the engine and other machinery were not suitable and safe, if the workmen who used them did their duty, or that the accident was caused by any want of instruction or caution to the plaintiff. On the contrary, it appeared that the sole cause of the accident was that the engineer neglected to stop the engine, as it was his duty to do. In this respect the case differs from the cases cited by the plaintiff.

As the plaintiff was injured by the negligence of a fellow servant he cannot recover, and the Superior Court rightly directed a verdict for the defendant. Durgin v. Munson, 9 Allen, 396.

Judgment on the verdict.