| Kan. | Jul 15, 1871
This action was in all probability brought to this court for the mere purpose of obtaining a decision of the question involved therein, for the mere purpose of making it a test case. The plaintiff Dow filed a petition in the district court alleging among other things that the plaintiff was a brakeman on the defendant’s railroad, that he was injured through the negligence of the conductor on the same road, lie carefully alleged everything necessary to a recovery except that he carefully avoided alleging that the defendant was negligent in employing the conductor, or in retaining him after he was so employed. The defendant demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff excepted, and without amending his petition and going to trial before a jury he brings the case to this court. The defendant has filed a very able and elaborate brief in this court, citing all the leading authorities on both sides of the question. In fact, it would seem that more solicitude is entertained concerning the question involved in the case than concerning the case itself. It would seem to be the desire that the decision should be for the railway company, more as a precedent for future decisions than for this particular case. But notwithstanding the ability and zeal displayed on'the part of the defendant, which would naturally make us cautious, we are inclined to think the great weight of authority if not of reason, is with the defendant. It is probable, however, that both authority and reason are with the defendant. The paramount object of nearly all the rules of law concerning the operation of railroads is security to the person and lives of human beings, and particularly security to the persons of passengers being transported on the trains from one portion of the country to another, and in order to insm-e this security the railroad companies are held to the strictest accountability with regard to passengers. They must use the utmost care and skill within the scope of human foresight or human knowledge practicable.
As to passengers, and generally as to any person not in the employ of the company, the negligence of any agent or servant of the company is the negligence of the company. As to such persons even the negligence of the brakeman is the negligence of the company. But as between co-employees no one is peculiarly the representative of the company more than another, except perhaps the higher officers whose duty it is to employ and discharge the other employees, aad therefore as between co-employees the negligence of none but the higher officers aforesaid is the negligence of the company. If such higher officers are not careful and diligent in employing and discharging or retaining the other employees then the company is responsible to the other employees for the negligence of such employees as have been employed or retained without proper care. The decision of the court below must be affirmed.