Beasley

The plaintiff, an employee of the defendant, brought this action to recover for personal injuries caused by the carelessness of a fellow-employee in running a freight-elevator. Judgment was rendered in his favor for five hundred dollars, and from this judgment, and an order denying a new trial, the defendant has appealed.

The plaintiff can maintain no action against the defendant for damages sustained solely through the negligence of a fellow-employee; but to avoid the .effect of this rule, the plaintiff has charged in his complaint that the defendant was negligent in selecting and retaining in its service the fellow-servant through whom the accident occurred. The presumption is, that the master has done his duty, and has selected competent servants, and there is no presumption that the fellow-servant is incompetent or careless; hence it is incumbent upon the servant who seeks to recover from the master for the carelessness of a fellow-employee to show by affirmative proof, not only that the fellow-employee was in fact careless, but that the master had knowledge of such carelessness, or was negligent, either in the selection or retention of such servant. There must be some…