Smith v. Sibley Manufacturing Co.

Simmons, Justice. Under the facts alleged in this declaration, there was [336] no error in sustaining the demurrer thereto and dismissing the same. The plaintiff was injured by the negligence of a co-employee, and was therefore not entitled to recover. Nor would the allegation in the declaration that Benson, the co-employee, had a “ propensity to start machines after they had been stopped, and this was known to the officers of the defendant, and they retained him in its employ,” authorize him to recover; because the plaintiff alleges that he had a knowlege of this propensity on the part of Benson before he was injured, and that Benson on three previous occasions had started the machinery in motion after it had been stopped, and had thereby come near killing several of the employees. If the plaintiff know that Benson was an inefficient and negligent servant, he should not have engaged in the same service with him, any more than he should work with a defective tool given him by his employer. The fact that the defendant retained Benson after the injury was not a ratification. If ratification applies at all, it- is only when a wilful injury was inflicted by the servant. Judgment affirmed.