Henry v. Fitchburg Rd.

The opinion of the court was delivered by ROWELL, J. This is an action on the case by a servant against the master for an injury alleged to have been received by the plaintiff by reason of the negligence of a fellow-servant, who, it is alleged, was careless and incompetent, to the knowledge of the master. The objection urged to the sufficiency of the declaration is that it does not allege that the plaintiff did not know that the fellow-servant was careless and incompetent. The argument is that it devolves upon the plaintiff, as a necessary part of his case, to show that his own negligence did not contribute to his injury, and that, it being necessary for him-to prove it, [438] he must allege it, and therefore, that he should have alleged want of knowledge on his part of the alleged character of the fellow-servant, in order to have properly negatived contributory negligence. But conceding, for present purposes, this argument to be sound, we think the declaration fulfills the requirement; for it alleges that at the time .the injury was received the plaintiff was ‘ ‘ in the prudent and careful discharge of the duties of his employment.” ■ This allegation cannot be restricted, as claimed by the defendant,* to the mere physical work that plaintiff was doing between the cars at the time of injury, but it embraces the fact of his being there as well, and is in effect an allegation, good against a general demurrer, that he was not negligent in being there, and is broad enough to let in proof that he did not know of the alleged character of the engineer, who was the fellow-servant, as bearing on the question of contributory negligence. Judgment affirmed and cause remanded.