Albro v. Agawam Canal Co.

Fletcher, J. This case cannot be distinguished in principle from the case of Fanrwell v. Boston and Worcester Railroad, 4 Met. 49 ; and the same point has been since adjudged in the case of Hayes v. Western Railroad, 3 Cush. 270. The principle of these decisions is, that when one person engages in the service of another, he undertakes, as between him and his employer, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of [77] others in the service of the same employer, whenever he, such servant, is acting in the discharge of his duty to his employer, who is the common employer of both. In the present case, the injury of which the plaintiff complains appears to have happened, while she was acting in the discharge of her duty to the defendants, as her employers, in their factory, and to have been occasioned by the negligence of another person, who was also engaged in the defendants’ service, in the same factory. It cannot affect the principle, that the duties of the superintendent may be different, and perhaps may be considered as of a somewhat higher character than those of the plaintiff; inasmuch as they are both the servants of the same master, have the same employer, are engaged in the accomplishment of the same general object, are acting in one common service, and derive their compensation from the same source. The plaintiff and the superintendent must be considered as fellow-servants, within the principle and meaning of the cases above referred to, and the other adjudged cases on this’ subject. There is no allegation, that the superintendent was not a fit and proper person to be employed by the defendants to perform the duties assigned to him, but only that he was chargeable with negligence and unskilfulness, on the particular occasion when the plaintiff was injured in the manner described. It would have presented a very different case, if the defendants had employed an unfit and improper person, and in that way the plaintiff had been exposed to and had suffered injury. In the decision of the case of Farwell v. Boston and Worcester Railroad, the case of Priestly v. Fowler, 3 M. & W. 1, was referred to as an authority in point. There have recently been two other English cases (Hutchinson v. York, Newcastle, and Berwick Railway, 5 W. H. & G. 343 ; Wigmore v. Jay, Ib. 354,) which fully sustain the doctrine and decision of Priestly v. Fowler. It is very clear, therefore, upon the adjudged cases, that this action cannot be maintained, and that judgment must be entered for the defendants.