Flynn v. City of Salem

Field, J. The declaration alleges “ that the defendant was guilty of negligence in the premises,” but the only negligence specifically set out is the negligence of the “ superintendent of said work, who was the agent of the defendant for that purpose.” The declaration does not clearly show for what purpose the trench was being dug, whether the superintendent was an officer of the city or not, or what his duties were. Prima facie, a person employed to superintend the digging of a trench is a fellow servant with the laborer employed to dig it, when the superintendent and the laborer are employed by the same master. Zeigler v. Day, 123 Mass. 152. Johnson v. Boston, 118 Mass. 114. O’Connor v. Roberts, 120 Mass. 227. Killea v. Faxon, 125 Mass. 485. If there were any facts, of which the legal effect was that the superintendent and laborer were not fellow servants, they should have been stated in the declaration. Judgment and verdict set aside, and demurrer sustained.