27 Minn. 162 | Minn. | 1880
Plaintiff was employed as a section man on the railroad of defendant. One Jacks was employed by it as “road-master.” They, with others, were engaged in raising several wrecked freight cars, when plaintiff received a serious injury, by reason, as the complaint alleges, of the negligence, carelessness and unskilfulness of Jacks. There is no allegation of negligence on the part of defendant in
As appears from the evidence, the ordinary duties of section men are, under their foreman, to keep the track within their section in order, and, when called on by the road-master, to assist in raising and removing wrecked cars, even though within another section. The business of the “road-master” is to keep the track in order along the entire line, as we infer from the evidence,.including the raising and removing of wrecked cars. For the purpose of performing his duties, he has authority over the section men. As to what he shall do, and when he shall do it, he is under the orders and control of the superintendent. He is the overseer of those he calls to assist him. In the manner of working, unless otherwise directed by the superintendent, he is left to his own judgment and discretion. But he has nothing to do with employing or discharging men, or providing machinery or tools to work with. Above him, in respect to authority, are, first, the superintendent; next, the manager, and the president and directors of the company.
That as a general rule the master is not liable to one servant for an injury caused by the negligence of another servant in the same common employment, is held by every court which decides according to the principles of the common law. This court so held in Foster v. Minn. Central Ry. Co., 14 Minn. 360. The rule has strong considerations of public policy, as well as private justice, to sustain it. In the case of a stranger, the rule respondeat superior applies in all its force. In such case, the act of the servant within the scope of his employment, however inferior may be his grade or authority, is the
The duties which the contract of employment imposes on the master are that, where machinery or instrumentalities are to be used in the work, he will exercise due care and caution in providing such as are fit and safe; and, where co-servants are to be employed, he will use due care and caution in selecting such as are competent and careful. For injuries arising from failure to perform these duties the master is liable, and he cannot avoid the liability by deputing another to perform them in his stead. There are cases which appear to add to these duties the duty not to have the servant set, either by the master or by one whom he places in authority over him, to do work more dangerous than he engaged to do, or to do unusually hazardous work, where, from youthfulness or feebleness of intellect, the servant may be supposed to be unable to appreciate the danger and guard against it, or the hazards of which are known to the master, but are unknown to, and not open to the observation of, the servant. There is nothing in this case to make it necessary for us to decide on these propositions, or do more than allude to, without expressing any opinion on, them.
All the authorities, where there is no statute on the subject, agree that in the contract of employment the servant assumes such risks as — the master having performed the duties we have mentioned — are still necessarily incident to
It is upon this point that the authorities disagree. Some courts, the supreme court of Ohio being the leading one, hold that where the injured servant is subordinate to him whose negligence causes the injury, they are not “fellow-servants,” and the master is liable. On the other hand, the great majority of courts, both in this country and in England, hold that mere difference in grade of employment, or in authority, with respect to each other, does not remove them from the class of fellow-servants as regards the liability of the master for injuries to one caused by the negligence of the other. If the servant is supposed to assume the risks which the master,
Order reversed, and new trial ordered.