*SECTION III.

Injuries to Servants, by neglect of Fellow - Servants, and use of Machinery.

1. In general no such cause of action exists against company.

6. No implied contract, by ship-owners, that ship is seaworthy.

2. But if there is any fault in employing 7. But rule does not apply where servant has unsuitable servants, or machinery, are no connection with the particular work. n. 9. Cases reviewed in England, Scotland,

liable.

§ 131. 1. It seems to be now perfectly well settled in England, and mostly in this country, that a servant, who is injured by the negligence or misconduct of his fellow-servant, can maintain no action against the master for such injury.1

* 2. But it seems to be conceded, that if there be any fault in the selection of the other servants, or in continuing them in their places, after they have proved incompetent, perhaps, or in the employing unsafe machinery, the master will be answerable for all injury to his servants, in consequence.2

1 Priestly v. Fowler, 3 M. & W. 1; Hutchinson v. York, Newcastle & Berwick Railw., 5 Exch. 343; Wigmore v. Jay, 5 Exch. 354; Skip v. Eastern Counties Railw., 24 Eng. L. & Eq. 396 (1853); Farwell v. Bos. & W. Railw., 4 Met. 49 ; Murray v. South C. Railw., 1 McMullan, 385; Brown v. Maxwell, 6 Hill (N. Y.), 592; Coon v. Sy. & Utica Railw., 6 Barb. 231; s. c. 1 Selden, 492; Hayes v. Western Railw., 3 Cush. 270; Sherman v. Roch. & Sy. Railw., 15 Barb. 574; McMillan v. Railroad Co., 20 Barb. 449; Honner v. The Illinois Central Railw., 15 Ill. R. 550; Ryan v. Cumberland Valley Railw., 23 Penn. St. 384; King v. Boston & Worcester Railw., 9 Cush. 112; Madison & I. Railw. v. Bacon, 6 Porter (Ind.), 205. The same rule prevails in Virginia. Hawley v. Baltimore & Ohio Railw., 6 Am. Law Reg. 352.

2 Shaw, Ch. J., 4 Met. 49, 57; Keegan v. Western Railw., 4 Selden, 175. But it makes no difference in regard to the liability of the company that the person came into the service voluntarily, to assist the servants of the company in a particular emergency, and was killed by the negligence of some of the ser

* 386, 387

3

In Frazier v. The Pennsylvania Railway Company, it was held, that if the company knowingly or carelessly employ a rash or incompetent conductor, whereby the brakeman on the train is injured, the company are responsible for the injury; that the act of the agent of the company having charge of employing such agents or servants, and of dismissing them for incompetency, is

vants. Degg v. Mid. Railw. Co., 1 H. & N. 773. It is said, McMillan v. Saratoga & Wash. R. 20 Barb. 449, that the servant, in order to entitle himself to recover for injuries from defective machinery, must prove actual notice of such defects in the master. But culpable negligence is sufficient, undoubtedly, and that is such as, under the circumstances, a prudent man would not be guilty of. Post, note 10, § 170. But if the servant knew of the defects, and did not inform the master, or if the defects were known to both master and servant, and the servant makes no objection to continue the service, he probably could not recover of the master for any damage in consequence. But if the master know of the defect, and direct the servant to continue the service, in a prescribed manner, he is responsible for the consequences. Mellors v. Shaw, 7 Jur. N. S. 845. Where the defendants were joint owners and workers of a coal-mine, and one of their employees was injured by a defect in the machinery, and it appeared that one of the defendants personally interfered in the management of the colliery, and the jury found that defendant guilty of personal negligence, it was held sufficient to implicate both defendants, as they must be presumed to have known that improper machinery was being employed. Ashworth v. Stanwix, 30 L. J. Q. B. 183. But see Wright v. N. Y. Central Railw., 28 Barb. 80. Post,

n. 9.

And if the master use reasonable precautions and efforts to procure safe and skilful servants, but, without fault, happen to have one in his employ through whose incompetency damage occurs to a fellow-servant, the master is not liable. Tarrant v. Webb, 37 Eng. L. & Eq. 281. In Dynen v. Leach, 26 Law J. N. S., Exch. 221 (April, 1857), it was decided, that where an injury happens to a servant in the use of machinery, in the course of his employment, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the injury, the servant cannot recover, nor, if death ensues, can his personal representative recover of the master, there being no evidence of any personal negligence on his part, conducing to the injury. Nor does it vary the case that the master has in use in his works an engine, or machine, less safe than some other which is in general use, or that there was another and safer mode of doing the business, which had been discarded by his orders.

And in Assop v. Yates, 30 Law Times, 290 (in January, 1858), it was held, that if the servant knew of the exposure, and consented to continue the service, and suffered damage, he could not recover of the master for any negligence which might have contributed to the result.

3

3 38 Penn. St. 104; Wright v. N. Y. Central Railw. Co., 28 Barb. 80; Carle v. B. & P. Canal & R. R. Co., 43 Me. R. 269.

the act of the company; but the company are not responsible for such injury, unless they were in fault in employing or continuing the conductor in their service; that the character of such conductor for skill and faithfulness may be shown by general reputation. The master is not in general bound to use any special precautions to secure the servant from injury in regard to matters equally within the knowledge of both.a But the master is liable for all injuries accruing to his servants from his own personal negligence; and this may consist in personal” interference in the particular matter causing the injury, or by negligently retaining incompetent servants, producing the injury.5 But a railway company is liable in damages for an injury resulting to any person lawfully using its road, from its neglect to introduce any improvement in its machinery or apparatus, which is known to have been tested, and found materially to contribute to safety, and the adoption of which is within its power so as to be reasonably practicable. But in another case,7 in an action by a servant against his master for injuries sustained by the explosion of a steam-boiler used in his business, the plaintiff introduced evidence without objection, that there was no such fusible safety-plug on the boiler as was required by statute; and the presiding judge excluded evidence of a custom among engineers not to use such a plug, and instructed the jury that if the defendant knowingly used the boiler without the plug, and the want of it caused the accident, the plaintiff was entitled to recover, and refused to instruct them that if the defendant used all the appliances for safety that were ordinarily used in such establishments, he was not liable, although he did not use the fusible plug required by statute, and it was held the defendant had no ground of exception. It is here declared by the court that ordinary care must be measured by the character and risks and exposures of the business, and the degree of care required is higher when life or limb is endangered, or a large amount of property is involved, than in other cases.8

* Seymour v. Maddox, 16 Q. B. 326.

5 Ormond v. Holland, 1 El. Bl. & El. 102.

8

• Smith v. N. Y. & Harlem Railw. Co., 19 N. Y. R. 127.

7. Cayzer v. Taylor, 10 Gray, 274.

3 Post, common carriers of passengers. See also Briggs v. Taylor, 28 Vt. R. 80, 184.

9

3. But the company are not liable because there was a deficiency of help at that point. And a neglect in the company to fence their road, whereby the engine was thrown from the track, by coming in contact with cattle thus enabled to come upon the road, and a servant of the company so injured that he died, will not render them liable.10

4. But it has been questioned whether the rule has any just application to servants in different grades, who are subordinated the one to the other. But as the ground upon which the rule is * attempted to be maintained is one of policy chiefly, that it is better to throw the hazard upon those in whose power it is to guard against it, it seems very questionable how far any such distinction is maintainable. It has been attempted in a good many cases, but does not seem to have met with favor.

5. And the rule itself has been denied in some cases, in this country, after very elaborate consideration.12 And it has been

Skip v. Eastern Counties Railw., 24 Eng. L. & Eq. 396; Hayes v. Western Railw., 3 Cush. 270.

10 Langlois v. Buf. & Roch. R. 19 Barb. 364.

11 Gardiner, J., in Coon v. Sy. & Utica Railroad Co., 1 Seld. 492; s. c. 6 Barb. 231. But in Gillshannon v. Stony Brook Railw., 10 Cush. 228, it was held to make no difference that the servants were not in a common employment. This was the case of a laborer riding upon a gravel train to the place of his employment, and injured by the negligence of those in charge of the train.

12 Little Miami Railw. v. Stevens, 20 Ohio R. 415; C. C. & C. Railroad Co. v. Keary, 3 Ohio St. 202. These cases are placed mainly upon the ground of the person injured being in a subordinate position. It was held the rule did not apply to day laborers upon a railway, who were not under any obligation to renew their work from day to day, where one, after completing his day's work, was injured through the negligence of the conductor of one of the company's trains, upon which he was returning home, free of charge, but as part of the contract upon which he worked. Russell v. Hudson River R., 5 Duer, 39. And in Whaalan v. M. R. & Lake Erie Railw., 8 Ohio St. 249, it was held that where one of the employees of a railway, engaged in making repairs upon its track, was injured by the neglect of a foreman upon one of the trains, there was no such subordination in regard to their duty as to justify any departure from the general rule of excusing the master. See also Indianapolis Railw. v. Love, 10 Ind. R. 554; Same v. Klein, 11 Ind. R. 38. In Hard, Adm'r. v. Vt. & Canada Railw., 32 Vt. R. 473, the plaintiff's intestate, who was an engineer on the defendant's road, was killed by the explosion of a locomotive engine which he was running, which occurred by the neglect of the company's master-mechanic in not keeping the machine in repair. It was his duty to superintend and direct

held not to apply to the case of slaves,13 especially where the employer stipulated not to employ them about the engines and cars, unless for necessary purposes of carrying to places where their services were needed, and they were carried beyond that point, and killed in jumping from the cars.14 The court of Sessions in Scotland, too, seems to have dissented from the English rule upon this subject.15

the repairs upon the engines. The directors of the company were not guilty of any neglect in furnishing the road, in the first instance, with suitable machinery and competent employees, and they were ignorant of any defect in this engine. The company were held not responsible for the death of plaintiff's intestate, on the ground that under the circumstances the injury must be considered as occurring from the neglect of a fellow-servant, employed in the same common business.

13 Scudder v. Woodbridge, 1 Kelly, 195.

14 Duncan v. Railroad Co., 2 Richardson, 613.

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