Durham v. Whittier Mills Co.

Russell, J. The court, properly sustained the special demurrers, but erred in dismissing the petition. The .allegations were sufficient to withstand the general demurrer. The case alleged by the petitiou is that of a servant injured because his fellow laborers, in response to a direct command of the master, then, and there given to do the particular tiling which they did, overturned' a heavy machine and threw the entire weight on him, thus injuring him. The tiling- thus dii'ected was negligent, and tlie plaintiff had no reasonable opportunity to protect himself from the result of the negligence, as the order was suddenly given and immediately obeyed. The petition sets out a cause of action, as the master, under the circumstances, would be liable, either on the theory that the negligent order was the sole juridic cause of the injury, or on the theory Unit the negligence of the master concurred with the negligence of the. servants who executed it, if, indeed, their execution of the order in the exact manner in which they were directed to perform it can he considered as negligence at all. Where a servant is injured by the concurrent negligence of the master and of fellow servants, the master may be held liable. Judgment reversed.