130 Mass. 102 (Mass. 1881), Osborne v. Morgan

Citation:130 Mass. 102
Opinion Judge:Gray, C. J.
Party Name:John Osborne v. Charles H. Morgan & others
Attorney:G. F. Verry & H. L. Parker, for the plaintiff. W. S. B. Hopkins & F. T. Blackmer, for the defendants.
Judge Panel:Gray, C. J. Colt & Morton, JJ., absent.
Case Date:January 10, 1881
Court:Supreme Judicial Court of Massachusetts

Page 102

130 Mass. 102 (Mass. 1881)

John Osborne


Charles H. Morgan & others

Supreme Court of Massachusetts

January 10, 1881

Argued October 6, 1880


Exceptions sustained.

G. F. Verry & H. L. Parker, for the plaintiff.

W. S. B. Hopkins & F. T. Blackmer, for the defendants.

Gray, C. J. Colt & Morton, JJ., absent.


Gray, C. J.

The declaration is in tort, and the material allegations of fact, which are admitted by the demurrer, are that while the plaintiff was at work as a carpenter in the establishment of a manufacturing corporation, putting up by direction of the corporation certain partitions in a room in which the corporation was conducting the business of making wire, the defendants, one the superintendent and the others agents and servants of the corporation, being employed in that business, negligently, and without regard to the safety of persons rightfully in the room, placed a tackle-block and chains upon an iron rail suspended from the ceiling of the room, and suffered them to remain there in such a manner, and so unprotected from falling, that by reason thereof they fell upon and injured the plaintiff. Upon these facts, the plaintiff was a fellow-servant of the defendants. Farwell v. Boston & Worcester Railroad, 4 Met: 49. Albro v. Agawam Canal, 6 Cush. 75. Gilman v. Eastern Railroad, 10 Allen 233, and 13 Allen 433. Holden v. Fitchburg Railroad, 129 Mass. 268. Morgan v. Vale of Neath Railway, 5 B. & S. 570, 736, and L. R. 1 Q. B. 149.

Page 103

The ruling sustaining the demurrer was based upon the judgment of this court, delivered by Mr. Justice Merrick, in Albro v. Jaquith, 4 Gray 99, in which it was held that a person employed in the mill of a manufacturing corporation, who sustained injuries from the escape of inflammable gas, occasioned by the negligence and unskillfulness of the superintendent of the mill in the management of the apparatus and fixtures used for the purpose of generating, containing, conducting and burning the gas for the lighting of the mill, could not maintain an action against the superintendent. But, upon consideration, we are all of opinion that that judgment is supported by no satisfactory reasons, and must be overruled.

The principal reason assigned was, that no misfeasance or positive act of wrong was charged, and that for nonfeasance, which was merely negligence in the performance of a duty arising from some express or implied contract with his principal or employer, an agent or servant was responsible to him only, and not to any third person. It is...

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