Di Marcho v. Builders Iron Foundry

The negligent act set forth in the declaration is that of a foreman in throwing a box upon a pile of iron posts, whereby the plaintiff was injured. This was clearly the act of a fellow servant and not the negligence of the principal. The foreman was doing nothing which it was the duty of a master to do; nor was any breach of a master's duty the proximate cause of the injury. As held in Hanna v. Granger, ante p. 507, and Larich v.Moies, ante p. 513, a servant stands in the place of a principal only when some duty or power, which pertains to a principal and which is an element in causing the injury complained of, is delegated to him; as to all other matter he is a co-servant. The character of the act is the criterion of the liability and not the foreman's power of supervision and control, or of hiring and discharging help. See Baltimore Ohio R.R.Co. v. Baugh, 149 U.S. 368, Riley v. W. Va. etc. Railroad,27 W. Va. 145; McKinney on Fellow Servants, § 42, and cases cited.

The declaration sets out therefore a case of negligence of a fellow servant and not of the defendant. The demurrer to the declaration must be sustained.