88 Cal. 360 | Cal. | 1891
This action xvas brought by the widow and infant son of James W. Congrave, deceased, to recover damages for the death of the latter, who was killed by an accident on a railroad train of the defendant. A demurrer to the complaint was sustained by the court-below, and plaintiffs declining to amend, judgment went for defendant. From this judgment plaintiffs appeal.
The complaint avers that said Congrave, deceased,
We think that the demurrer was properly sustained, and that the judgment should be affirmed.
It is entirely clear on the face of the complaint that the deceased and the conductor were co-employees of defendant. It is also clear that the death was caused by the negligence and breach of duty of the conductor in starting the train before schedule time; no other cause of the accident is intimated in the complaint. There is no averment that the defendant was negligent in the selection of the conductor. And the general rule (whatever exceptions there may be to it) is well settled in England and the United States, and particularly in this state, that a master is not liable to his servant for damages sustained by the negligent act of a fellow-servant, unless the master was negligent in the selection of the servant at fault. It is hardly necessary to cite authorities on this point, as we do not understand counsel for appellant to contend against the general rule as above stated. The earliest cases upon the subject in this country in which the principle was applied to railroad companies and their employees are Murray v. R. R. Co., 1 McMuIl. 385, 36 Am. Dec. 268, decided by the supreme court of South
It is true, however, that there has been some difference of opinion as to the meaning of the phrase “ fellow-servants, ” and a few of the cases have recognized a distinction growing out of different grades of employment. There has also been recognized in a few instances what may be called the doctrine of “vice-principalship”; that is, where one general employee is held to have been given the entire and unlimited control and management of the whole business of the principal, so that he stands in all respects in his principal’s place,- and all his negligent acts are deemed to be the direct acts of the principal. And upon these asserted principles we understand appellant to mainly rest this case. It is contended that as the conductor was superior in grade to the deceased brakeman, and had certain authority over him, and as the conductor, with respect to the running of the train, was the vice-principal, therefore the general rule applicable to fellow-servants does not apply. In support of this position, the case of Chicago & M. R. R. Co. v. Ross, 112 U. S. 377, is cited.
The facts of the last-named case are not exactly like those in the case at bar. It may be assumed, however, that the opinion of the majority of the court in that case is favorable to the appellants’ contention. That seems to be the view taken by the four dissenting justices, Bradley, Matthews, Gray, and Blatchford; for in expressing their dissent they say: “We think that the conductor of the railroad train in this case was a fellow-servant of the railroad company with the other employees on the train. We think that to hold otherwise would be to break down the long-established rule with regard to the exemption from responsibility of employers for injuries to their servants by the negligence of their fellow-servants.” But it is to be observed that the majority of the court were not governed or restrained
The Civil Code of California went into effect January 1, 1873, and under the head of “ Obligations of the Em-" ployer,” it provides as follows: “Section 1970. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of business in which he is employed, nor in consequence of. the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.” This section of the code not only restates the rule first established by judicial decision as to injury received through the negligence of a fellow-servant, but it clears away to a great extent the difficulties which may have existed as to the meaning of “fellow-servants.” It declares them to be those employed “in the same general business.” And if the employees on a train of cars, including the engineer, the conductor, the fireman, and the brakeman, are not persons employed in the same business, it would be difficult to imagine a set of men who could be considered as so employed. They are on the same train; their duties all appertain to the running of that train; each has his own work to do, and the joint work of all is necessary to the business; they are almost constantly in close relations and personal contact with each other; they have the fullest opportunities for knowing each others’ qualifications as to carefulness and skill, and detecting any failure of duty; and to them applies peculiarly the reasoning upon which the general rule was originally founded.
This clause of the code has received judicial construe
It is contended, however, that the principal may give an employee such authority as will constitute him a “vice-principal that in that instance such employee stands in the shoes of the principal, and the latter is liable for the employee’s negligence by which another employee is injured; and that in the case at bar the conductor was such vice-principal." The authorities mainly relied on for this contention are Beeson v. Green Mountain, 57 Cal. 20; Brown v. Sennett, 68 Cal. 225; 58 Am. Rep. 8; Sanborn v. Madera Flume Co., 70 Cal. 261; and McKune v. Cal. Southern R. R. Co., 66 Cal. 302.
In the Beeson case, the death of the deceased was caused by a defective pipe in a mine; and the only point decided was, that a principal is liable for injury to an employee caused by defective machinery. The principle that it is the duty of an employer himself to provide safe materials and structures has never been disputed. There is some language used in the opinion which, perhaps, goes further; for which reason, probably, three justices dissented. But the case decides nothing more than as above stated.
In Sanborn v. Madera Flume Co., 70 Cal. 261, the plaintiff was injured by defective machinery used in a saw-mill, and the court decided, according to the well-settled rule, that “it is the duty of the owner of a sawmill to furnish suitable and safe machinery for the use of his employees.”
In McKune v. Cal. S. R. R. Co., 66 Cal. 302, a Department decision, the defendant was engaged in constructing a railroad. The plaintiff was injured by the negligence of one Fisher, who “was material agent and train-dispatcher for defendant, and had charge of the moving of trains.” The negligence consisted in his carelessly sending out a special train, which collided with a hand-car, on which plaintiff and others were riding, and injured plaintiff. “A rule of the company declared that no extra engine, either with or without train, unless in company with a regular train, would pass over any portion of the road, except on an order from the material agent or train-dispatcher.” The court say: “He represented the defendant; was a vice-principal; he employed and discharged men, and directed the movements of the
Our conclusion is, that on the facts of this case as presented in the complaint, the deceased and the conductor were persons “ employed by the same employer in the same general business,” within the meaning of section 1970 of the Civil Code, and that therefore the
Judgment affirmed.
De Haven, J., Harrison, J., Paterson, J., and Sharpstein, J., concurred.