3 Dill. 319 | U.S. Circuit Court for the District of Nebraska | 1874
In determining this demurrer, it will be assumed without extended discussion that the established doctrine of the law, in the absence of statute ^regulation, is, that the servant assumes all the •ordinary risks of the service upon which he enters, including those risks which arise from the negligence of other servants of the same master in the same employment. The extent, of this rule and the scope of its operation we shall notice presently, so far as the allegations of the petition and the argument in support of its sufficiency make it necessary. But the general rule that ordinarily the common master is not liable to one servant for the consequences of the negligence of another serv■ant in the same service, is so thoroughly settled by adjudication, as in our opinion to be no longer open to judicial question. Every ■court in Great Britain has concurred in the doctrine, including the courts of error; and finally, it was declared sound by the house •of lords, upon full debate by eminent counsel. and upon the most deliberate consideration. Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266.
The current reports show that the rule is unquestioned in that country, and constantly ■applied without the numerous exceptions which some of the American courts are iu--elined to engraft upon it- And in this country the general Tule itself is everywhere recognized, the only dispute being as to cases to which it properly applies. The cases will be found cited in Shearman & Redfield’s work on Negligence, and in Dr. Wharton’s treatise on the same subject. The doctrine is one pertaining to general jurisprudence; it involves no question of federal law, and therefore this court is not at liberty, any more than a state court, xo disregard the uniform and settled course of judicial decision. The evils which would certainly arise from a holding by the federal courts of a doctrine in conflict with that held by the courts elsewhere upon a question which so frequently arises and of so much practical importance may easily be anticipated.
After a careful consideration of the allegations of the petition as to the negligence of the conductor in violently pulling the rope, etc., etc., we are of opinion that the case made therein falls within the general rule which exempts the master from liability, except it may be in respect to the defect in the engine in not being provided with a signál bell in the cab. In discussing the questions which arise in this view, we admit that the rule is settled both in Great Britain and America, that the master is bound to use ordinary care to employ and retain competent servants, and to furnish and maintain suitable and safe machinery and structures. We consider that view to be correct, also, which holds that this duty of the master is so far personal and inalienable that responsibility for damages caused by the negligent discharge of it exists, although the, master in discharging it may, for' his own convenience, act through other servants. Tarrant v. Webb, 18 C. B. 797; Gilman v. Eastern R. Co., 13 Allen, 433; Id., 10 Allen, 233. and cases cited by Mr. Justice Gray, page 238.
And just here it is that the plaintiff maintains that this rule gives him a cause of action, since his employer failed to use care in providing him with a suitable and safe engine in this, that the engine furnished him was without a usual and proper appliance, namely, a signal bell in the cab. and that it was this omission that caused the injury for which a recovery is sought. Upon the allegations of the petition it must be taken as true that the engine was defective in this respect, and it may be conceded that it is sufficiently averred that this was the proximate cause of the injury to the plaintiff. We say this may be conceded in disposing of the demurrer, though there is ground to contend that the proximate cause of the injury was not the want of a signal bell or the breaking of tho pane of glass, but the plaintiff’s failure to notify the conductor thereof, so that it might be closed, or to discover and report his danger. But if it be conceded that the want of the signal bell was the direct cause of the injury, the immediate question is. does the petition, notwithstanding,- set out a cause of action, or rather docs it contain- other aver-
The defect in engine was one of the existence and nature of which the engineer had full knowledge; it was peculiarly within his department, and if he voluntarily continued the use of the engine, presumptively he assumed the risk of so doing, and cannot visit it upon the employer. There may be exceptions to this rule as in the case of Clarke v. Holmes, 7 Hurl. & N. 937, in which the exchequer chamber affirmed the judgment below (6 Hurl. & N. 349), where the servant injured had complained of the dangerous state of the machinery and the master had promised to remedy the defect; or in cases, perhaps, where the servant injured did not know or have reason to apprehend the danger to which the defect of the machinery or structure exposed him. Huddleston v. Lowell Mach. Shop (1871) 106 Mass. 282; Jones v. Yeager [Case No. 7,510]; Union Pac. R. Co. v. Fort, 17 Wall. [84 U. S.] 553.
The allegations of the petition do not bring the case within the principle of the exceptions, and it falls within the general doctrine expressed by Pollock, C. B.. “that a servant cannot continue to use a machine he knows to be dangerous at the risk of his employer.” Dynen v. Leach, 26 Law J. Exch. 221; Id., 40 Eng. Law & Eq. 491. Strong instances of the application of the same general principle will be found in Senior v. Ward, 102 E. C. L. (1 El. & El.) 385; Griffiths v. Gidlow, 3 Hurl. & N. 648; Assop v. Yates, 2 Hurl. & N. 768; Watling v. Oastler, L. R. 6 Exch. 73; Clarke v. Holmes, supra; Paterson v. Wallace, 28 Eng. Law & Eq. 48; Buzzell v. Laconia Manuf'g Co., 48 Me. 113; Frazier v. Pennsylvania R. Co., 38 Pa. St. 104, 111; Davis v. Detroit & M. R. Co. (1870) 20 Mich. 105, 127, approving Mad River & L. E. R. R. Co. v. Barber, 5 Ohio St. 564; Hayden v. Smithville Manuf’g Co., 29 Conn. 548; Laning v. New York Cent. R. Co. (1872) 49 N. Y. 521.
Assuming it to be true as some of these cases hold (see Laning v. New York Cent. R. Co., Watling v. Oastler, Senior v. Ward, Clarke v. Holmes, above cited), that the servant’s knowledge of defective materials and structures or of incompetent fellow servants: defeats a recovery by him on the ground of “contributory negligence,” and that it is not needful for the pleader to negative contributory negligence in the declaration (Railroad Co. v. Gladman, 16 Wall. [83 U. S.] 402), still if the facts are, as in this case, set forth, fully detailing the manner in which the injury happened, and if they show a state of case which defeats a right of recovers’, a demurrer to the petition will lie. Upon the whole our judgment is that the petition does not set forth such a case as shows the defendant to-be. liable for the injury to the plaintiff. Accordingly judgment will be entered for the-defendant on the demurrer. Judgment accordingly.