Floyd v. Sugden

W. Allen, J. The declaration, in alleging that the defendant was negligent “ in not supplying suitable, safe and sufficient machinery, appliances, tools and implements for the safe performance of the work upon which the plaintiff was engaged ” correctly expresses the ground of the defendant’s liability. The .negligence of which the plaintiff complains consisted in not properly protecting the sides and bottom of the excavation in which he was at work. If the defendant furnished the materials, the appliances, for doing this, the use and application of them, according to the exigencies of the work, was the duty of servants engaged in the work, unless specially assumed by the master. Gilman, as superintendent of the work, and the plaintiff, as a laborer upon the work, were fellow servants, and the duty of Gilman in using the means and appliances provided for safely and properly carrying on the work was that of a servant engaged in the same business with the plaintiff, even if he had acted as the representative of the master in furnishing such means and appliances. There was no error in the instructions or refusals to instruct. Albro v. Agawam Canal, 6 Cush. 75. McDermott v. Boston, 133 Mass. 349. Flynn v. Salem, ante, 351. Holden v. Fitchburg Railroad, 129 Mass. 268, and cases cited. Exceptions overruled.