Ashley v. Hart

By the Court. The St. of 1887, c. 270, § 1, cl. 1, gives a right of action to an employee, being himself in the exercise of due care, who is injured by “any defect in the condition of the ways, works or machinery connected with or used in the business of the employer,” which arose from the negligence of the employer, or of any person in his service who is intrusted with the duty of seeing that the ways, works, or machinery were in proper condition. This.so far changes the common law as to give a right of action to a servant who is injured by a defect in the machine, tool, or appliance itself which is furnished for his use, although such defect arose from the negligence of a fellow servant whose duty it was to see that the machine, tool, or appliance was in proper condition. But it does not give a right of action against the employer for the negligence of a 'fellow servant in handling or using a machine, tool, or appliance which is itself in a proper condition. The declaration in this case does not allege any defect in the condition of the movable stage furnished by the defendant for the use of the plaintiff and his fellow servant Kempton. It does not directly, or by a fair implication, allege that Kempton, any more than the plaintiff, was intrusted with the duty of seeing that either particular end of the stage was securely fastened to the house. It alleges, that, according to the usual manner of managing such stages, Kempton had charge of lowering one end and the plaintiff of lowering the other, and that Kempton neglected to fasten his end securely. This is simply an allegation of negligence in a fellow servant in handling or using a sufficient and proper stage, and does not state a case which falls within the statute. Judgment affirmed.