McGinley v. Levering

152 Pa. 366 | Pa. | 1893

Opinion by

Me. Chief Justice Paxson,

The plaintiff was a workman in the employment of the defendants, who are contractors on structural iron work, and while so engaged, a steel hammer, in the hands of another workman, broke, and a piece or fragment of it penetrated the left arm of the plaintiff. Neither of the defendants was present at the time the injury occurred, but it was alleged that the workman using the hammer and in whose hands it broke, was acting under the orders of one Peter Peterson, whom the plaintiff alleges was an assistant foreman, and that the defendants were responsible for his. negligence.

The only question in the case is presented by the first specification of error, which alleges that the court erred in not instructing the jury, as requested by the defendants’ third point, as follows: “ That Peterson, by whose order, the plaintiff alleges he placed himself in danger, was, under the evidence, a fellow workman with the plaintiff and therefore the plaintiff cannot recover.”

This point should have been affirmed, and the case withdrawn from the jury. It is plain that Peterson was a fellow workman with the plaintiff. If we concede that he was an assistant foreman it does not help the plaintiff. It is settled by abundant authority that a foreman is but a fellow workman: Lehigh Coal Company v. Jones, 86 Pa. 432; New York Railroad Company v. Bell, 112 Pa. 400; Kinney v. Corbin, 132 Pa. 341. Conceding that the injury, of which the plaintiff complains, was the result of negligence, it was the negligence of a fellow workman for which the defendants are not responsible.

Judgment reversed.