Meehan v. Speirs Manufacturing Co.

Barker, J. The action is at common law, with the burden upon the plaintiff to show that the negligence from which he [377] suffered was negligence for which his employer was answerable.' This burden is not met by evidence which is equally consistent with actionable fault of the employer, and with the absence of such fault. At common law a superintendent is for many purposes a fellow servant with the workmen under him, and the employer not answerable to them in case of the superintendent’s negligence even in giving an order. The plaintiff must go further, and show that the negligence of a superintendent was in a matter as to which the law imputes his carelessness to the master. Upon the evidence, the danger to which the plaintiff was exposed was merely a transitory one, existing only on the single occasion when the injury was sustained, and due to no fault of plan or construction, or lack of repair, and to no permanent defect or want of safety in the defendant’s works, or in the manner in which they had been ordinarily used. The accident was caused by using naphtha upon cotton waste in cleaning the inside of a tank, when the fumes of the naphtha were liable to explode upon contact with the flame of a lamp, with which the plaintiff standing near by was giving light for their work to men who were within the tank using there the waste and naphtha. The naphtha was used in obedience to an order given by the superintendent. But it did not appear that the naphtha was provided for use in cleaning the tank. It had been used, and we must assume properly used, for cleaning machines, and the only fair inference from the plaintiff’s testimony is that other and safe materials had been used theretofore in cleaning the tank. It was as reasonable to find from the evidence that the superintendent’s act in ordering naphtha to be used on this occasion was merely his own choice between safe materials, which he might have directed to be used, and dangerous materials provided for some other but proper purpose, for which choice his employer was not answerable, as to find that in giving the order he was carrying out an intention of his employer to have naphtha used in cleaning the tank. Exceptions overruled.