200 Mass. 79 | Mass. | 1908
There was evidence which would have warranted a finding that the plaintiff was injured through the negligence of the defendant’s servant Hogan, and that he himself was in the exercise of due care. The evidence tended to show that the plaintiff was working for the defendant in its business at the time of the accident, and was subject to its control in the work in which he was engaged, and was, therefore, a fellow servant of Hogan. The important question in the case is whether there was evidence that would have warranted a finding that, in doing this work, he was not in the defendant’s service. Unless there was such evidence he cannot recover.
It appears that he is a machinist, and has been employed for twenty years by J. and W. Jolly. His work there has been “ general repair work, new work and going out to mills doing repairs in mills.” Under instructions from his employer he went to the defendant’s brewery about February 19, and saw Hogan, the engineer. In the engine room were a steam engine and a number of large machines, with connecting machinery. When he arrived in the engine room he asked Hogan what was the trouble. Hogan replied that he “ wanted the piston taken out and the bottom heads — the bottom heads of the cylinder. He
All the evidence tends to show that the plaintiff was furnished by his employer to work as a servant of the defendant, and there is no evidence that has any tendency to show that he was there in any other relation. He was employed at the time of the accident in the defendant’s business, of which the defendant as proprie
The plaintiff’s exception to the exclusion of testimony must be overruled.
Exceptions overruled.
The plaintiff offered to show that his foreman at J. and W. Jolly’s, after a telephone message from the defendant’s brewery, ordered the plaintiff, on the morning of the day before he was .injured, to go over to the brewery and put in the pistons.