Sullivan v. Mills

Morton, J. This is an action at common law, and not under the employers’ liability act. The accident was due primarily to one Swain, a servant. There was no evidence tending to show that he was incompetent, and the plaintiff has not argued that there was. If we assume that Swain was in the employ of the defendant, then the accident was due to the negligence of a fellow servant. If he was not in the employ of the defendant, then he was in the employ of the Mason Machine Company, and for that reason the- defendant is not liable. The plaintiff contends, however, that the machine on which he was working was defective for want of a catch or hook to hold the “ ball ” or shipper, and that the accident was due to that fact. Even if we assume that, under the circumstances disclosed in evidence, the defendant was liable to the plaintiff for an accident occurring from a defect in the machine on which he was working, it is difficult to understand how the accident was due to any defect in the machinery. Swain lifted the shipper to stop the machine; it slipped from his hand, which was greasy, and threw the belt on to the drawing-in pulley, and caused the injury to the plaintiff. If there had been a catch, — and the absence of one is the only defect suggested, — it is impossible to see what good it would have done. It would not have rendered it unnecessary for Swain to take hold of the shipper, or have prevented the shipper from slipping out of his hand, and it was that which caused the accident. „ Exceptions overruled.