John M. McKenna vs. Lynn Gas and Electric Company.
Essex.
November 7, 1914.
November 9, 1914.
Present: Rugg, C. J., Hammond, Sheldon, De Cottrcy, & Crosby, JJ.
Negligence, Employer’s liability.
A cable splicer employed by an electric lighting company, who was injured by reason of the negligence of the switchboard operator at the power station of his employer in reporting that he had shut off the current of electricity from the cable on which the splicer had been ordered to work, whereas by mistake he had shut it off from another cable, cannot maintain an action at common law against his employer for such injuries which were due to the error of his fellow employee.
Tort at common law against a corporation operating an elec-tric lighting plant for personal injuries sustained by the plaintiff at about five o’clock in the morning of April 17, 19Í0, when the plaintiff, who was employed by the defendant as a cable splicer, was at work in a manhole at the corner of Exchange and Union •Streets in Lynn, and received an electric shock from a current of •electricity of twenty-three hundred volts by reason of the alleged negligence of the defendant in setting the plaintiff at work in a •dangerous place without due warning and instructions in regard to the dangers of which the plaintiff was ignorant. Writ dated April 17, 1912.
In the Superior Court the case was tried before Hardy, J., who at the close of the plaintiff’s evidence, which is described in the -opinion, ordered a verdict for the defendant. The plaintiff alleged exceptions.
J. G. Walsh, for the plaintiff.
H. R. Mayo, for the defendant, was not called upon.
Rugg, C. J.
There is no disagreement between the parties about the facts.
'The plaintiff, a thoroughly experienced employee of the defendant, was injured by an electric shock received from a cable. Before the plaintiff was directed to work upon this cable his foreman telephoned to the switchboard operator at the power station of the defendant to shut off the current from this cable, which *209was identified by its number. The operator reported that he had done so; but he had made a mistake and shut it off from another cable. This evidence shows only the negligence of a fellow servant of the plaintiff. As this action is at common law, there can be no recovery. Grebenstein v. Stone & Webster Engineering Corp. 205 Mass. 431. The case plainly is distinguishable from Hopkins v. O’Leary, 176 Mass. 258, and Hooe v. Boston & Northern Street Railway, 187 Mass. 67, and like cases where there was a definite failure of the employer to take precautions to provide a place safe for the employee. In the case at bar the single cause of the plaintiff’s injury was the error of his fellow employee in stating what he had done for the protection of the plaintiff.
Exceptions overruled.