Atkinson v. Clark

CHIPMAN,C.

—Plaintiff sues to recover damages for personal injuries received through the alleged negligence of defendant in employing an unfit fellow-servant. The cause was tried by a jury, and at the close of plaintiff’s evidence upon the issue of defendant’s liability, the court granted defendant’s motion for a nonsuit, and entered judgment accordingly, from which plaintiff appeals.

The complaint alleges that about September 18, 1895, defendant employed plaintiff as a servant, in the capacity of a carpenter, for a certain compensation; that plaintiff entered into the service of defendant on that day, and worked as a day-laborer until October 2, 1895; that while so engaged and working for defendant, he (defendant) negligently and wrongfully employed one Baptista Cavaleries, and others, whose names are unknown to plaintiff, to work for defendant, “as servants, for hire, in . . . the same line of work as the plain-' tiff was then engaged to perform, and that in the choice of the aforesaid servants the defendant wrongfully neglected to use ordinary or any prudence or care in their selection, but willfully, and with full knowledge of their unskillfulness, carelessness, and mental and physical unfitness for the work for which they were employed, engaged, and hired, without plaintiff’s knowledge of the fact, or of their employment in his line of work, the above-named servants,” etc. It is alleged that on October 2, 1895, while in defendant’s said service, plaintiff was injured, through the negligence of the said servants, in the following manner: Plaintiff was engaged to tear down a building, and while he was at work removing the lath and plaster from the partition walls within the outer brick walls of the building, the said Cavaleries, and said other servants, “while under defendant’s control and direction, and within the scope of

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their employment, and without the knowledge of plaintiff, negligently, . . . precipitated said walls upon the person of plaintiff,” thus injuring him.

The testimony of defendant, who was called as a witness by plaintiff, was, that he was the medical superintendent of the state asylum for the insane at Stockton; that one James Halliday was an outside attendant at the asylum, and had charge of the insane patients. Defendant testified: “The patients were put to work at various kinds of employment in and about the asylum, but I did not designate or select them myself. Whatever is to be done in a laboring way the patients generally take a hand in.—Q. They were under your authority, I suppose?—A. Well, of course, yes, under my authority in a measure; I did not select them myself.” Referring to the work of tearing down the building, he testified, that the patients were taken out by those who knew them and handled them; that he did not designate the patients himself; that Cavaleries was one of the patients; “I was not present when the wall fell down upon Mr. Atkinson, and knew nothing about it until I was called to see him immediately afterward. James Halliday had charge of the patients who were working upon the building at the time. . . . The employees use their own discretion in taking out to work the patients that have been there a long time and are well known. Mr. Peterson, the foreman, has charge of the selection of the patients that are distributed about under the different attendants to go to work, and he •receives them from the inside attendants. Peterson is one of the officers at the asylum.”