Lyons v. Sommer
274 Mass. 234
Mass.
1931
Check Treatment
Rugg, C.J.

This is an action of tort by an employee to recover compensation for personal injuries alleged to have been received in the course of his employment through the negligence of a fellow employee. There was evidence tending to support the allegations of the declaration as to the cause of injury. The defendant was not a subscriber under the workmen’s compensation act and hence cannot show in defence that the plaintiff was negligent or that his. injury was caused by the negligence of a fellow employee. The evidence need not be narrated. *235There was evidence tending to show that the injury was received through the negligence of a fellow employee acting within the scope of his employment. Apparently the cause of the injury was that two employees instead of four were undertaking to move a piece of iron too heavy for their strength. No discussion is needed to demonstrate that the case at bar is governed in principle by Bernabeo v. Kaulback, 226 Mass. 128, and is distinguishable from Ashton v. Boston & Maine Railroad, 222 Mass. 65. There are no facts on the present record which require a finding of contractual assumption of risk on the part of the plaintiff.

Order dismissing report affirmed.