120 Mich. 624 | Mich. | 1899
(after stating the facts). It appears conceded that plaintiff and Enrich and Shafer were ordinarily fellow-servants, but it is argued that they were not
1. That the machine was one in common use, was properly constructed, and properly set up.
3. That Enrich and Shafer were competent for the work. (One count in the declaration alleged their incompetency, but this was abandoned upon the trial.)
3. That the machine was in the same condition as when purchased, except the alleged lowering of the guideboard.
á. That Hargraves was a competent foreman to superintend these mills.
^Defendant had furnished a safe place, proper machinery and appliances, and competent men to perform the work. Evidently he. could not personally superintend all the details of the work. To sustain the contention of the learned counsel for the plaintiff would result in making an employer responsible for every negligent act of his employe, no matter how extensive his business, when such negligent act related to the necessary fixing of machinery, and that, too, when he himself may not be skilled in such things, and has done all that lay in his power, by furnishing good materials, appliances, and skilled and experienced men. It would result in overturning the well-established rule upon the negligence of fellow-servants. The question cannot be determined by the fact that the work to be done requires skill and experience, or that one servant occupies a position of greater responsibility, or is engaged in a different line of employment. The servant, in order to make his employer responsible for his negligent act, must be engaged in work which belongs to the master to superintend. A locomotive engineer of one train and the conductor of another are fellow-servants. So, also, , are brakeman and engineer. Michigan Central R. Co. v. Dolan, 32 Mich. 510; Conger v. Railroad Co., 86 Mich. 78. A miner and a timberman are fellow-servants.
Judgment affirmed.
