224 Pa. Super. 327 | Pa. Super. Ct. | 1973
Opinion by
At issue in this case is the vicarious liability in tort of an employer of persons not covered by The Pennsylvania Workmen’s Compensation Act
The lower court resolved the question in favor of the employer-defendants in this case, and granted a compulsory nonsuit against the injured companion and her husband, who are plaintiffs, under the fellow servant rule. This rule provides that a master is not to be held liable for an injury to a servant caused solely by the negligence of a fellow servant. See Ryan v. Cumberland Valley R.R., 23 Pa. 384 (1854). Following the court’s refusal to remove the nonsuit and its entry of judgment for the defendants, the plaintiffs appealed. We reverse.
On appeal from a refusal to take off a compulsory nonsuit, the plaintiff must be given the benefit of all
On appeal, plaintiffs contend that the lower court erred in granting a compulsory nonsuit on ground of the fellow servant rule.
The rule which precludes liability on the part of a master for loss to a servant due solely to the negligence of a fellow servant was first suggested in the English
It is obvious that the rule is more consistent or less consistent with most of the reasons stated above depending upon the definitions of “servant” and “fellow servant.” As more inclusive definitions are applied, the rationales of the injured party’s assumption of the risk, his ability to guard against the negligence in question, and his promoting of others’ safety become less persuasive.
Just as the definitions of “servant” and “fellow servant” will affect the consistency of the fellow servant rule with respect to its rationales of assumption of risk, ability to guard against negligence, and promotion of care, so will the factual situation of an employee’s loss affect the rule’s consistency with respect to a fourth rationale: the encouragement of industrial undertakings. It is difficult to maintain, for instance, that it would foster industrial undertakings to apply the fellow servant rule in such a way as to discourage an employee from making a reasonable attempt to rescue his employer’s goods which have been imperiled by the negligence of another employee.
Judgment reversed and the nonsuit removed, with a procedendo.
77 P.S. §1 et seq. See note 5 infra.
On this appeal, the contention of the plaintiffs that the defendants waived the fellow servant rule as a defense, under Pa. R. O. P. No. 1032, by failing to plead it under Pa. R. O. P. No. 1030 will not be considered. The issue was not raised in the court below. See Steffy v. Carson, 422 Pa. 648, 222 A.2d 894 (1966).
See W. Prosser, The Law of Torts §80 (4th ed. 1971).
See 53 Am. Jur. 2d Master and Servant §§295, 301 (1970).
The Pennsylvania legislature has made the defense of a fellow servant’s negligence inapplicable in a number of specific instances. “In all actions brought to recover from an employer for injury suffered by his employe, the negligence of a fellow-servant of the employe shall not be a defense, where the injury was caused or contributed to by any of the following causes; namely, — Any defect in the works, plant, or machinery, of which the employer could have had knowledge by the exercise of ordinary care; the neglect of any person engaged as superintendent, manager, foreman, or any other person in charge or control of the works, plant, or machinery; the negligence of any person in charge of or directing the particular work in which the employe was engaged at the time of the injury or death; the negligence of any person to whose orders the employe was bound to conform, and did conform, and, by reason of his having conformed thereto, the injury or death resulted; the act of any fellow-servant, done in obedience to the rules, instructions, or orders given by the employer, or any other person who has authority to direct the doing of said act” Act of June 10, 1907, P. L. 523, §1, 43 P.S. §171.
The legislature has also abolished the defense in all cases under The Pennsylvania Workmen’s Compensation Act. “In any action brought to recover damages for personal injury to an employe in the course of his employment, or for death resulting from such injury, it shall not be a defense — (a) That the injury was caused in whole or in part by the negligence of a fellow employe . . . .” Act of June 21, 1939, P. L. 520, §1, 77 P.S. §41.
Under the Act of June 21, 1939, P. L. 565, §1, 77 P.S. §la, The Pennsylvania Workmen’s Compensation Act is not applicable, absent election by the employer and approval by the Workmen’s Compensation Board, to a person engaged in domestic service. Neither
A “servant,” therefore, for purposes of the rule, has been held to not include an employee who has gone off duty for the day and is injured through the negligence of another employee in front of the employer’s premises. Baird, v. Pettit, 70 Pa. 477 (1872). In view of our disposition of this case, it is unnecessary to consider wheth