Burke v. Nat'l India-Rubber Co.
| Decision Date | 20 December 1897 |
| Citation | 44 A. 307,21 R.I. 446 |
| Court | Rhode Island Supreme Court |
| Parties | BURKE v. NATIONAL INDIA-RUBBER CO. |
On Rehearing.
Employes engaged in cleaning out a gearing pit in a factory are fellow servants of an employe engaged in feeding a machine on the same floor.
Action by John F. Burke against the National India-Rubber Company. Petition by defendant for new trial. Granted.
Henry W. Hayes, for plaintiff.
Orrin L. Bosworth and William R. Tillinghast, for defendant.
The testimony shows that in obedience to the order of the defendant's foreman, Finch, communicated to them through Walsh, who tended the calendar machine, the two boys, Mahar and Farley, proceeded to clean out the pit before that time occupied by the gearing of, a calendar machine which had been removed from that location; that in doing this Mahar and Farley threw the grease, dirt, scraps of gum, and other material which had accumulated in the pit, onto the brick floor in front of the rolling mill, by which the plaintiff was injured; that they subsequently removed this from the floor, except some of the grease which adhered to the brick and rendered it slippery; that this work was done between 3 and 4 o'clock in the afternoon; that the accident to the plaintiff happened on the same afternoon, shortly before 6 o'clock, and was occasioned, as the jury found, by the plaintiff's slipping on the greasy floor and falling against the rolls of the mill. We think that the leaving of the grease on the floor by Mahar and Farley must be regarded as the carelessness of fellow servants of the plaintiff, and consequently that the common pleas division erred in refusing the defendant's fifth request for instructions. The short interval of time between the leaving of the grease on the floor and the accident to the plaintiff was insufficient to charge the defendant with notice of the condition of the floor, and thereby render it liable for a breach of its duty to the plaintiff to furnish him safe premises on which to work. New trial granted, and case remitted to the common pleas division.
On Rehearing.
(Oct. 13, 1899.)
The plaintiff seeks, by his first contention, to bring his case within the principle which requires a master to furnish reasonably safe premises for his servant, and that, when a master delegates to a servant a duty which belongs to himself, the servant will occupy the place of the master, and not that of a fellow servant. But we do not think that the case falls within this...
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