Holland

This is an action brought to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a road-master. The injuries were the result of a collision between a locomotive engine and a construction train upon which the plaintiff was riding. The engine which came in collision with the train was then being used in the work of defendant, and was driven by an engineer named Mulligan, employed by the defendant for that purpose.

The complaint alleges that Mulligan, for some time prior to and up to the time of the collision, “ had been and was incompetent, reckless and grossly negligent in the performance of his duties as an engineer and . . . . employee of defendant,” and that defendant had notice of such incompetency and negligence for more than one month prior to the date of plaintiff’s injury.

The case was tried by a jury, and a verdict returned in favor of plaintiff for the sum of seven thousand five hundred dollars; and judgment was rendered in the superior court in accordance therewith. The defendant appeals.

The plaintiff and Mulligan were fellow-servants, and, in order to entitle plaintiff to the verdict and judgment recovered in…