A direction by an employer, given in a harsh and loud tone of voice, to his employe to do a lawful and proper act within the scope of his employment, who thereupon does the act improperly whereby a fellow servant is injured, is not such negligence in the employer as will entitle the person injured to maintain an action against him for damages.
SMITH, J.
The question has been elaborately argued whether Perry, in giving the order to the engineer for hoisting the scale-board, was acting as vice-principal, or as a fellow-servant of the plaintiff. In the view we take of this case that question need not be considered. Assuming as most favorable for the plaintiff that he was vice-principal, there was no evidence of negligence on his part competent to be considered by the jury. No question is made of the competency of the fellow-servants, and there is no allegation of defective machinery or appliances, nor of lack of instruction of the plaintiff as all inexperienced employe. The only negligence claimed is the harsh and loud tone of voice in which the direction to the engineer was given.
The direction to the engineer was not a command to hoist the scale-board improperly, nor more quickly than usual. He could not reasonably understand he was to act in such manner as to endanger the safety of others. He was not commanded to do an unlawful act, nor a lawful act in an improper manner. There was nothing in the fact that a team was waiting that required undue haste in hoisting the board. That was the only reason given by Perry to the engineer to attend to the duty assigned to him. There was no danger of injury to the team nor from it, by collision or otherwise. The negligent manner of hoisting the board was the act of the engineer, and not of Perry.
The motion for a nonsuit should have been granted.
Exceptions sustained.
CHASE, J., did not sit: the others concurred.