The opinion of the Court was drawn up by
Davis, J..—The plaintiff was one of the employees of the defendants, engaged in the manufacture of locomotives. While thus at work, in what is termed “ the setting-up shop,” a stick of timber fell upon him, from the beams overhead, by which he was severely injured. To recover damages therefor, he has brought this 'suit.
It appears, from his own testimony, that he had been at work for the company several years, during which time there had been some loose timbers lying across the beams, which were used for hoisting, and were shifted about as occasion re- . quired. The one that fell down, lapped on the beam less than two inches at either end. The plaintiff noticed that it was dangerous six months before the accident, and called the attention of Bartlett, the foreman of the shop, to the fact. *295He also called his attention to it again about the time of the accident; but Bartlett called him a coward, and told him to go to work.
It appears that Sparrow, the general superintendent of the business of the company, was usually in the shop every day; but there is no evidence that he knew any thing of the position of these timbers.
The plaintiff was employed by the day, and he could have left the service of the defendants at any time. But he was desirous to retain his place; and it is not strange that he continued to labor for them, even after he was aware of the danger, when he saw that his fellow-laborers had no fear. Whether, by so doing, he did not voluntarily assume the risk, even if the defendants were negligent, is not the question now before us.
Upon the evidence introduced by the plaintiff, the presiding Judge ordered a nonsuit, and the case comes before us on exceptions to that order. It has been argued with much learning and ability; but it is hardly necessary for us to enter upon any extended review of the numerous authorities cited. Whatever doubts may formerly have been entertained, the doctrine is now well settled, in this country and in England, that if a company exercise ordinary care to employ servants of good habits, and of competent skill and experience in their various departments, and to furnish them with machinery and apparatus of approved construction and material, their responsibility extends no further. They do not guaranty to their employees the faithfulness and diligence of their co-laborers in carrying on the business, or in keeping the machinery in such repair, or the works in such condition, that they shall be always safe. This is a part of the hazard which the employees impliedly assume themselves, whenever they enter into service with each other. Carle v. B. & P. Railroad Co., 43 Maine, 269, and cases there cited.
And this rule applies to all who are engaged in the common business, whatever relation of subordination they sustain *296to each other. Hard v. Verm. & Canada Railway Company, Law Reporter for January, 1860, p. 540.
It is argued in this case, that the nonsuit was improperly ordered, because the jury might have inferred from the testimony that there was negligence on the part of the corporation, as well as of its servants. The rule by which Courts should be guided in ordering nonsuits is correctly stated in a recent English case, in the Court of Exchequer; — “It is not enough to say there was some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the Judge in leaving the case to the jury. There must be evidence on which the jury might reasonably and properly conclude that there was negligence.” Cornman v. E. C. Railway Company, Am. Law Register, January, 1860, p. 116.
In the case at bar, the burden of proof was upon the plaintiff to show the negligence of the defendants. And, assuming that there was evidence that some of the fellow servants of the plaintiff were negligent, upon which it is not necessary for us to express any opinion, there is no evidence that would have justified the jury in finding, that, in employing their servants, or in furnishing machinery and apparatus, there was such negligence on the part of the company as to render them liable in this action. The exceptions are overruled, and the nonsuit is confirmed. .
Tenney, C. J., Appleton, Cutting, Goodenow and Kent, JJ., concurred.