The action is at common law, and only the first count is relied on.

The putting in of the coal was done by fellow servants of the plaintiff, and if the coal was put into and left in the bin in such a way that it was liable to fall upon and did fall upon the plaintiff and injure him, the negligence, if any, which caused the accident was the negligence of the plaintiff’s fellow servants and the defendant is not liable therefor. Moreover, we think that the risk was one of the obvious risks of the plaintiff’s employment. Coal was not put into the bin at fixed times or in fixed quantities, but as it might happen, and no notice was given to the plaintiff. In other words he was left to find out for himself when and how much and in what manner the coal was put in and to govern himself accordingly. The fact that at this time more coal was put in than had been put in before was one of the incidents of the business, and if it was left carelessly piled in the bin, that, as already observed, was the act of fellow servants. It is not necessary to consider whether the plaintiff was himself in the exercise of due care in going down into the cellar without his lantern when the electric lamp was out and groping his way to the side of the bin where the key to his time clock was kept. If there was any negligence on the part of Savery, the superintendent, it was that of a fellow servant, and the defendant is not liable therefor.

Exceptions overruled.