| Mich. | Dec 22, 1893
Plaintiff bases his right of recovery upon the negligence of defendant (1) in employing an incompetent and inexperienced fellow-servant, named Oldenberg, and assigning him to work with plaintiff without any instruction or training; (2) in purchasing and using a crooked railway tie.
Plaintiff and Oldenberg belonged to a section gang of four men, who were at the time engaged in loading ties, from a pile alongside the track onto a hand car. The men worked in pairs, one at each end of a tie, plaintiff and the section boss working together, and Oldenberg and the other man, named Miller. The load was nearly completed. The top tie was crooked, and in the center bulged out a little over the line of straight ties under it. ' Olden-berg and Miller were in the act of loading a heavy green-oak tie. The section foreman directed plaintiff to assist them. He took hold near the middle of it. Oldenberg, without waiting for the usual signal, upon which they all lift and throw together, threw his end first. This tie was thrown upon the crooked tie, when suddenly the outside tier tipped over, falling on plaintiff’s leg, and breaking it.
The court properly directed a verdict for the defendant. These four men were fellow-servants. No negligence was shown in the employment of Oldenberg. He was mentally and physically competent to perform the work, which was of the simplest character, not attended with any particular hazard, nor requiring any particular skill. Oldenberg had been employed by the defendant on this section since the 1st of April, and the accident occurred on the 15th. He came to this country in 1879, and was employed on a farm until his employment by the defendant. During this time he was engaged in the usual work of a section man, and once before had been engaged in handling ties in a similar manner. Any one of fair intelligence and the requisite physical ability is.competent to perform such work, and
Judgment affirmed.