Page images
PDF
EPUB

Scotland, too, seems to have dissented from the English rule upon this subject.15

15 Dixon v. Ranken, 1 Am. Railw. C. 569. The remarks of Lord Cockburn are pointed and pertinent. "The English decisions certainly seem to determine that in England, where a person is injured by the culpable negligence of a servant, that servant's master is liable in reparation, provided the injured person was one of the public, but that he is not responsible if the person so injured happened to be a fellow-workman of the delinquent servant. It is said, as an illustration of this, that if a coachman kills a stranger by improper driving, the employer of the coachman is liable, but that he is not liable if the coachman only kills the footman. If this be the law of England, I speak of it with all due respect, it most certainly is not the law of Scotland. I defy any industry to produce a single decision or dictum, or institutional indication, or any trace of any authority to this effect, or of this tendency, from the whole range of our law. If any such idea exists in our system, it has, as yet, lurked undetected. It has never been directly condemned, because it has never been stated."

After citing numerous cases in their Reports, where the question was involved but not raised, his lordship continues: "The new rule seemed to be recommended to us, not only on account of the respect due to the foreign tribunal,—the weight of which we all acknowledge, — but also on account of its own inherent justice. This last recommendation fails with me, because I think that the justice of the thing is exactly in the opposite direction. I have rarely come upon any principle that seems less reconcilable with legal reason. I can conceive some reasoning for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur danger on his account, and certainly are not understood by our law to come under any engagement to take these risks on themselves."

But the English cases certainly do regard the servant as impliedly stipulating to run these risks when he enters into the service. The remarks of the learned judge above ought not perhaps to be regarded as of any inherent weight here, beyond the mere force of the argument, and it is always to be regretted that any difference of decision should exist among the tribunals of the different states upon a subject of so much practical moment. The great preponderance of authority in this country is undoubtedly in favor of the English rule: but we could not forbear to state, that we have always had similar difficulties to those stated by his lordship, in regard to the justice or policy of the rule. When these cases go by appeal to the House of Lords, they are determined according to the rule of the Scottish law. Marshall v. Stewart, 33 Eng. L. & Eq. 1. Opinion of Cranworth, Chancellor.

But see the very lucid and convincing argument of Shaw, Ch. J., in Farwell v. Boston & Wor. Railw., 4 Met. 49, 56; s. c. 1 Am. R. C. 339; and the most ingenious attempt at reductio ad absurdum upon the subject by Lord Abinger, Ch. B., in Priestly v. Fowler, 3 M. &. W. 1, 6, 7, where the learned Ch. B., among other ingenious speculations, supposes some fearful consequences might follow if the master were to be held liable for the negligence of the chambermaid in putting the servant into wet sheets!

* 6. But it has been held, that there is no implied obligation on the part of a ship-owner towards a seaman, who agrees to serve

*

If a man should receive damage in any way by his own foolhardiness, even where a fellow-servant was concerned in producing the result, he could not recover of any one upon the most obvious grounds. Some discretion and reserve are no doubt requisite in the application of the rule of the servant's right to recover for the default of his fellow-servant, but whether the difficulty of its application will fairly justify its abandonment, would seem somewhat questionable, if the thing were res integra, which it certainly is not, either in the English or American law.

In an English case, in the Court of Exchequer, 11 Exch. 832; s. c. 36 Eng. L. & Eq. 486, Wiggett v. Fox et al., the court adhere to the rule laid down in former English cases upon this subject, reiterating the same reasons, with the qualification, that if there were any reason for holding that the persons whose act caused the injury were not persons of ordinary skill and care, the case would be different, there being an implied obligation upon the master not to employ such persons.

With this qualification there seems to be no serious objection to the English rule of law upon this subject. Bassett v. Norwich & Nashua Railw., Superior Court of Conn. 19 Law Rep. 551.

In a case in the Court of Sessions in Scotland, so late as January, 1857, the court repelled a plea, founded on the claim that the master is not liable to a servant for the negligence of a fellow-servant. The Lord Justice Clerk took occasion to remark, that the master's liability rested upon the broad principle, that an employer being liable to third parties for injuries caused by his servants, à fortiori he is liable to the servant for injury caused by another servant. But for injury to servants through obvious or known defects of machinery in the use of the master, unknown to the servant, but which the employer by the use of ordinary care could have cured, the cases all agree that he is liable. McGatrick v. Wason, 4 Ohio N. S. 566.

In the Exchequer Chamber, so late as May, 1857, in Roberts v. Smith, 29 Law Times, 169, it was held, that where the master directs the conduct of the servant, he is liable for any injury resulting therefrom to the other servants. See also Weyant v. N. Y. & Harlem R. 3 Duer, 360.

It has been held in some cases, Scudder v. Woodbridge, 1 Ga. 195, that the rule that the master is not liable for an injury to one servant inflicted by the want of care or skill in a fellow-servant, does not apply to the case of slaves, on account of their want of freedom in action and choice in continuing the service when it becomes perilous. But if an exception could be founded upon any such basis, it would extend to all the subordinate relations of service, as has sometimes been attempted. But where the injury resulted from the habitual negligence of the engineer of a boat, whereby the slaves perished, by the bursting of a boiler, the master of the boat is liable, and the same rule applies to the case of freemen. Walker v. Bolling, 22 Alab. 294; Cook v. Parham, 24 Alab. 21. The court here were equally divided upon the question, whether the general rule upon this subject applied to the case of a slave hired on a steamboat.

But this court subsequently held, on general principles, that where one em

on board, that the ship is seaworthy, and in the absence of any express warranty to that effect, or of any knowledge of the defect, or any personal blame on the part of the ship-owner, the seaman cannot maintain an action, by reason of the ship becoming leaky, and his being obliged to undergo extra labor.16

7. But a carpenter employed by a railway company to build one of their bridges, and who took passage in their cars, by their directions, to go to a certain point for the purpose of loading timber to be used in building the bridge, and who was injured * in the course of the passage by the negligent conduct of the train, is entitled to recover of the company, the plaintiff having no particular connection with the conduct of the business in which he was injured.17

8. The English courts still maintain their former stand, that all the servants of the same company engaged in carrying forward the common enterprise, although in different departments, widely separated, or strictly subordinated to others, are to be regarded as fellow-servants, bound by the terms of their employment to run the hazard of any negligence or wrong-doing which may be committed by any of the number, so far as it operates to their detriment. This is strikingly illustrated in a recent case in the Common

ploys a mechanic to repair a building which is in a ruinous state, but this is not known to the workmen and not disclosed to the contractor, the employer is liable for all injury sustained by the contractor or his subordinates, being slaves in this case, by reason of the peril to which they are thus fraudulently exposed, but that he will not be held so liable if he inform the contractor of the peril to which he is exposed. Perry v. Marsh, 25 Alab. 659.

16 Couch v. Steel, 3 El. & Bl. 402; s. c. 24 Eng. L. & Eq. 77. But if the master might have known the exposure of the servant, but for his own want of ordinary care, as in the use of a defective locomotive engine, which exploded and injured the servant, through defective construction, the master is liable for the injury. Noyes v. Smith, 28 Vt. 59. But where the danger is known to the servant and not communicated to the superior, or master, he cannot recover for any injury he may sustain in consequence. McMillan v. Saratoga & Wash. R. 20 Barb. 449; Hubgh v. N. O. & C. Railw., 6 Louis. An. 495.

17 Gillenwater v. Mad. & Ind. Railw. 5 Ind. 340. And where laborers upon a railway were transported to and from their labor and meals upon the gravel trains of the company, which they were employed in loading and unloading, but had no agency in managing, and in such transportation, by the gross negligence and unskilfulness of the engineer were injured, it was held the company were liable. Fitzpatrick v. New Albany and Salem Railw., 7 Porter (Ind.), 436. But not where the servant is in fault in attempting to get upon the train when in motion. Timmons v. The Central Ohio Railw., 6 Ohio N. S. 105.

Pleas,18 where it was held that one employed to pick up stones from off the defendant's line, and who, while returning in the evening after his work was over in a train driven by the defendant's servants, was injured by a collision caused by the negligence of those who had charge of the train, it being one of the terms of the contract of hiring that he should return in the defendant's train, could not recover damages of the company, as he and the person guilty of the negligence resulting in the injury were fellow-servants, engaged in a common employment, within the meaning of the rule of law applicable to the case.

9. This whole question is very elaborately reviewed in a recent case in Kentucky,19 which we shall here repeat, together with our own comments at the time upon the several propositions embraced in the opinion, at the risk of some repetition, perhaps.

Where an employee upon a railway is injured by the negligence of the engineer of the company, and is himself guilty only of such neglect and want of care as would not have exposed him to the injury but for the gross neglect of the engineer, and when the engineer might with ordinary care have avoided the injury, he is not precluded from maintaining his action.

What is gross neglect in the engineer may be determined by the court, as a question of law, where there is no controversy in regard to the facts.

In regard to those acts of a corporation which require care, diligence and judgment, and which it performs through the instrumentality of general superintending agents, the corporation itself is to be regarded as always present supervising the action of its agents. The rule of law, that the master is not responsible to one of his servants for an injury inflicted through the neglect of a fellow-servant, is not adopted, to the full extent of the English decisions, in the state of Kentucky. The rule is there regarded as anomalous, inconsistent with principle, analogy, and public policy, and unsupported by any good or consistent reason.

In regard to all servants of the company acting in a subordinate sphere, the one class to another, and receiving injuries while in the performance of duties, under the command of a superior, whose authority they have no right to disobey or disregard, it is the same

18 Tunney v. Midland Railw. Co., Law Rep. 1 C. P. 291; s. c. 12 Jur. N. S. 691. 19 Louisville & Nashville Railw. v. Collins, 5 Am. Law. Reg. N. S. 265; s. c. 2 Duvall, 114.

precisely as if the injury were inflicted by the act of the company; and if there is any want of care and skill in the superior such as his position and duty reasonably demand, the company are responsible.

In such cases there is no implied undertaking on the part of the servant to risk the consequences of the misconduct of the agent of the company under whose authority he acted, and through whose negligence he received the injury.

Servants so situated, in distinct grades of superiority and subordination, are not to be considered as "fellow-servants," or "in the same service;" but rather in the light of strangers to each other's duties and responsibilities; and the subordinate may recover of the company for any injury sustained by reason of the ordinary neglect of the superior.

*

But if the subordinate is himself guilty of any want of ordinary care, whereby he is more exposed to the injury, he cannot recover, unless the superior was guilty of wilful misconduct or gross neglect, but for which he might have avoided inflicting the injury, notwithstanding the negligence of the other party.

Where, therefore, an engineer, while upon his engine, ordered a common laborer to do some needed work under the engine, in fastening bolts or screws belonging to it; and such workman, while lying upon his back in the performance of the service, had both his legs cut off by the movement of the engine forward and backward, through the gross neglect or wilful misconduct of such engineer, the company are responsible for the injury, notwithstanding there might have been some want of ordinary care on the part of the subordinate, contributing to some extent to the injury, but not necessitating it, except through the gross misconduct of the superior.

-

Per Robertson, C. J. We do not consider that the rule exempting the company from responsibility for injuries inflicted upon their servants through the want of ordinary care in other servants of the company, extends beyond those who are strictly "fellowservants" in the same grade of employment, and where one is not subject to the order or control of the others.

Beyond this the company is responsible for the consequences of the misconduct of superiors towards inferiors in its service, the same as towards strangers.20

20 We have presented a very extended syllabus of the foregoing case, embracing all the points upon which the opinion of the court is given, without

« PreviousContinue »