Fitzgerald v. Boston & Albany Railroad

Morton, J. The first count in the plaintiff’s declaration is at common law, and is somewhat imperfectly drawn, but has not been demurred to. The only negligence alleged in it is that the bales of hay were piled carelessly by the defendant’s servants, and by reason thereof fell on the plaintiff. The plain 295 tiff and those who piled the hay were fellow servants, and the defendant is not liable to the plaintiff for an injury resulting from the careless manner in which they did their share of the work in which all were engaged. Hodgkins v. Eastern Railroad, 119 Mass. 419. Connors v. Holden, 152 Mass. 598. The second and remaining count is under the employers’ liability act, so called (St. 1887, c. 270). The gist of the count is that the plaintiff was employed under the direction of the defendant’s superintendent, that the superintendent set him to work in a dangerous place, which he knew or ought to have known was dangerous, and that the superintendent piled the hay in a careless manner. There is no evidence that the superintendent piled the hay, or had anything to do with piling it, or that he set the plaintiff to work where he was working at the time of his injury. The only direction which he gave him was, that about a week before the accident he told him to go to the hay shed and work there and stow away hay. The superintendent had nothing to do with the particular place in the shed where the plaintiff was working. The shed itself was safe. The place where the plaintiff happened to be at work was only made dangerous by the proximity of the hay which fell. Neither was there any evidence that the superintendent knew or ought to have known that the hay was liable to fall. It did not appear how long it had been liable to fall, or what was the cause of its fall. There was uncontradicted testimony that the hay was piled properly. ■ When the negligence of a superintendent is relied on, “ the negligence complained of must occur not only during the superintendence, but substantially in the exercise of it.” Roberts & Wallace, Employers’ Liability, (3d ed.) 265, 266. There was nothing in the case from which it fairly could be inferred that the hay fell because of negligence on the part of a superintendent. Exceptions overruled.