On Motion fob Rehearing.
Mr. Chief Justice Beandelivered the opinion.
Where, as in Laning v. New York Gent. R. Co. 49 N. Y. 521 (10 Am. Rep. 417), relied upon by the defendant, there is evidence tending to show that the servant had a reasonable excuse for remaining in the employment of the master, notwithstanding his knowledge of the incompetency of a fellow-servant, it is a question for the jury as to whether he was guilty of contributory negligence in so doing. In this ease, however, there is no such evidence. No testimony whatever was given by the defendant, and that of the plaintiff shows that he had been acquainted with Nelson for several years prior to the accident, had worked with him not only in the quarry of the defendant company, but in quarries belonging to other parties, was familiar with the manner in which he did his work, and must necessarily have known of his incompetency, if he was in fact incompetent, notwithstanding which he continued to work with him without complaint. Under such circumstances, the question of defendant’s liability to the plaintiff for an injury sustained in consequence of Nelson’s incompetency is a question of law, and not of fact. There was no case for the jury, and the plaintiff was not entitled to have it submitted to them: 12 Am. & Eng. Ency. Law (2 ed.), 920.
The petition for rehearing is therefore denied.
Rehearing Denied.