Ahern v. Hildreth , 183 Mass. 296 ( 1903 )

Hammond, J.

The enclosure into which the plaintiff stepped was no part of the floor of the hotel, and that fact was clearly indicated by the glass and the railing taken in connection with the other circumstances. The defendant had no reason to expect that any person would go into the enclosure, except possibly the house man, whose duty it was to keep the glass clean so that the light might shine clearly through it, and who knew enough to step only upon the girders. The failure of the defendant, therefore, to have the glass strong enough to support a person walking upon it was not negligence as against this plaintiff. Even if the plaintiff was ordered to go into the enclosure, and even if the order was a negligent order, it was given by a fellow servant and not by the defendant, and in this action at common law the defendant is not answerable for it. Moody v. Hamilton Manuf. Co. 159 Mass. 70. The action of the judge in ordering a verdict for the defendant well stands upon the proposition that the evidence failed to show negligence on the part of the defendant, and it becomes unnecessary to consider whether there was evidence of due care on the part of the plaintiff.

Exceptions overruled.