11 Wis. 238 | Wis. | 1860
Assuming the appellant to have been a passenger upon the cars at the time of the injury complained of, we think the refusal of the court below to give the 4th instruction asked by his counsel, which was, that if the plaintiff was “ in an improper place for a passenger, yet, if he was there at the request of the company, the company was not thereby relieved' from liability ” &c., together with the remarks of the court in connection with such refusal, was calculated to mislead the jury. Perhaps the instruction as an abstract proposition, was not entirely accurate. Because if a passenger, at the request of the conductor, should take a seat on the cowcatcher, or hang himself from the platform, if injured while in that position, it is clear that the request of the conductor, would not relieve his act of that reckless negligence which would preclude his recovery. Yet we think this is very different from taking a place, which though ordinarily improper for a passenger, for the reason that men are employed by the company for the special purpose of fulfilling its duties, is yet not strictly speaking an improper place in itself, but on the contrary is one which some one must take, to fulfil a necessary duty. If by reason of any accident or otherwise, the brakeman upon a train should be disabled, and a conductor should request a passenger to perform the duty, we think he is at liberty, if he chooses, to do so. And it being a thing proper and necessary to be done, if while performing it with such reasonable care and vigilance as are consistent with the nature of the duty, he is injured by the negligence of the persons managing the train, we do not think the mere fact that he was in a more hazardous position, than he would have been in his seat, should be submitted to the jury, as proper grounds for imputing to him such negligence as would prevent his recovery. The question should be, was the place proper to be taken by any person; were the circumstances such as justified the passenger in taking it, and if so,
But the most interesting question in the case grows out of the disputed point, whether the plaintiff should be considered at the time of the injury, as a passenger or as an employee and servant of the company. There was testimony to the effect that he had been employed for wages, to act as brakeman during that trip. And he was injured while acting in that capacity. If the jury found that he was so employed,' there seems to be no reason why he should not be considered as having been injured while acting as a servant of the company. There was no impossibility in his acting in the two capacities during the trip. And if the law applicable to an injury occurring in the one, is different from that applicable to an injury in the other, the law of the case would depend upon the capacity in which he was acting when injured. If as Holton’s Express agent, he was a passenger and would be entitled to recover for a negligent injury, as brakeman he was a servant of the company, and would not be entitled to recover for an injury while acting as such, provided the law be as assumed, that one servant cannot recover for an injury occasioned by the negligence of another. And we think there is nothing in the former decision of this court in,this case, 7 Wis., 425, inconsistent with this view. It is true the
It seems therefore necessary for us to determine whether the law is as claimed by the company, that one servant cannot recover of his employer for an injury occasioned by the negligence of another servant engaged in the same business. From the head note to this case, when it was here before, it would appear that this court had then decided the question in the negative. But from an examination of the case, we do not think it can be said to have that effect. On the contrary, this point of law seems not to have been contested there; probably for the reason that the plaintiff's counsel re
The general rule is conceded, that every person is responsible for injuries occurring to others by the negligence of his servants, while in the execution of his employment. This rule settles the question, unless the fact that the person injured is also a servant of the same employer, is just ground for making it an exception. That the majority of the cases which have passed upon the point, both in this country and in England, have recognized this as an exception, cannot be denied. And if it is only the duty of a court to count the cases on each side of a question, and decide in favor of the majority, this matter could be very readily determined j though upon some questions, with the rapidity with which judicial decisions are multiplying, this rule might require considerable arithmetical capacity. But if the reason of the law be the soul of the law, and such we understand to have ever been its proudest boast, then a court has, although a more difficult, yet a more worthy task, and has not only to count but to weigh the cases, and by this test the majority do not always rule. And such we think to be the result here.
The question has been very thoroughly examined in the following cases: Gillentwater vs. The Madison & Indianapolis R. R. Co., 5 Port. (Ind.,) 339; Fitzpatrick vs. New Albany
And first, as to the distinction suggested by the cases in Indiana, exempting the principal from liability where the negligence was committed by a servant working in the same de
It has been said that the servant, in undertaking the business,-has, by his contract, agreed to assume all risks; that of negligence as well others. But the court of Indiana justly repudiates this idea. It says: “ True, there are authorities for the position, that when a party contracts to perform services, he takes into account ‘ the dangers and perils’ incident to the employment, but this can only be intended to mean such £ dangers and perils’ as necessarily attend the business when conducted with ordinary care and prudence. He cannot be presumed to contract with reference to injuries inflicted on him by negligence.”
That court therefore, would not sustain their distinction, by which a servant would be remediless for an injury by the negligence of another in the same department, on the ground that by his contract he had assumed the risk of such negligence. They say he does not contract with reference to any injuries to be inflicted on him by negligence. They therefore deprive themselves of all support for their distinction from one of the strong grounds relied on by all the cases, in favor of the exemption from liability.
The only other ground upon which this exemption is claimed at all, is that public policy requires it. It is rather faintly suggested by the court of Ohio, in Railroad vs. Keary, that “ public policy may be concerned in their keeping a supervision over each other,” &c. And if this is true, then the distinction between those serving in different departments might be valid, for the reason that those in the same department might supervise each other, and not those in other departments. But there seems to be no solid foundation for the idea that public policy requires this exemption. The only
And it is proper, in connection with this view, to consider the suggestion made in some of the cases, that an employee, where he sees that other negligent persons are employed, may leave the service. This suggestion is made in Farwell vs. Railroad Co., A Met., 59. Now suppose this view practically carried out, those employees who are themselves vigilant and attentive, find that there are some others negligent or reckless. The law furnishes them no protection against injuries by these, and the employer not being liable except as to the pub-
In Priestly vs. Fowler 3 M. and W., 1, which was the first case upon the subject although the court dwells upon the inconvenience which masters might suffer, they do not place their decision upon public policy. And such a suggestion would have been somewhat ludicrous in that case, as it is difficult to see how public policy could be very deeply inter- • ested in the loading of a private cart.
We think, therefore, that the cases in Ohio and Indiana^ following the dissenting opinion of Judge O’Neal, in the case in South Carolina, 1 McMullan, have overturned the only two grounds upon which this exception has ever been placed, and having overturned them, they leave no foundation for the distinctions which they admit.
Thus the cases in Ohio ignore the distinction implied in Indiana, and hold the company liable to the engineer for the negligence of the conductor, though"both were in the same
We are satisfied, therefore, that the general principles of the
For these reasons the judgment must be reversed, and the cause remanded for a new trial.
I do not wish to be understood as expressing any opinion whatever upon one question so fully discussed in the opinion of Justice Paine, filed in this case, namely, as to whether one servant or employee can maintain an action against his principal for injuries which he has sustained by or through the carelessness of another servant, in the employ of the same principal, while engaged in the same common service. I think the case should be reversed, for the reason that the circuit court improperly instructed the jury as to the effect and meaning of the former decision. I did not suppose the language used in that decision could be misunderstood, or could fairly have the construction which the circuit judge placed upon it. Certainly, the qualification or proviso added to the language of that opinion was not in my mind when I prepared it. If the opinion is considered with reference to the instruction before us on that occasion, the meaning will be obvious.
■ But whether the appellant could recover if it appeared that he was an employee of the company at the time he received the injuries complained of, I will express no opinion. That is a very interesting and important question, which I have not had time fully to consider; and the decisions upon that point, in this country and in England, are quite unanimous