42 N.H. 225 | N.H. | 1860
The gist of the declaration is, that by reason of the defendant corporation negligently permitting its road to be blocked with snow and ice and a car to be out of repair, the plaintiff, a servant of the defendants, employed as a brakeman, was injured.
If the railroad were owned by one individual, and he should personally assume the duty of examining and repairing the road and the cars, and through his negligence in not repairing, or in imperfectly repairing them, a brakeman employed by him should be injured, the employer • would be liable. And if the employer did not attend to the repairs himself, and if ordinary care and prudence required that one or more persons should be constantly engaged in making repairs, and the employer, through gross negligence, did not employ any, or a sufficient number of repair-men, or negligently employed unskillful ones, and a brakeman, not knowing this fact, and being in no fault for not knowing it, and being chargeable with no negligence or fault whatever, were injured, solely in consequence of such negligence of his employer, the employer would be liable. In such case, the master would be held
The same general rules must be applicable, whether the owner of the road and employer of the workmen is a person or a corporation. The agents of a corporation must have a principal, and its servants-must have a master; and the mutual duties and liabilities between master and servant must be the same, whether the master is a man, or a being existing only in contemplation of law. In the present case, ordinary care and prudence may have required that workmen should have been employed to repair the cars, and to remove the snow and ice from the track, and the stockholders may have voted not to employ such workmen, or to employ a number known to be insufficient,
It is understood that the powers and duties of the directors are such, that, in the general management of the business of the corporation, their negligence may be called the negligence of the corporation, in contradistinction to the negligence of its servants. Whether any other officers occupy a similar position in relation to the corporation and its servants, can not now be decided. King v. B. & W. Railroad, 9 Cush. 42; C. C. & Cin. Railroad v. Keary, 3 Ohio (St.) 201.
The rule is very generally established that a servant who is injured by the negligence of a fellow-servant in the course of their common employment, without any fault on the part of the master, can maintain no action against the master for such injury.- The rule appears to be founded on the implied contract that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, the compensation, in legal presumption, being adjusted accordingly; and it is said that perils arising from the negligence of fellow-servants are incident to the service. Farwell v. B. & W. Railroad, 4 Met. 49.
The contract between master and servant, for many if not for all purposes, is, that each will exercise ordinary
It has been held substantially that whether a workman is injured through inadequacy of machinery, or other aids or means furnished by his master, or through incompetency or carelessness of fellow-workmen, his right of action against his employer stands upon the same ground ; that between master and servant the implied contract is that each will use ordinary care in all things pertaining to the servant’s business ; that if a master exercises ordi
The law on this subject is not peculiar to common carriers, railroads, or extensive enterprises. The responsibilities of the defendants, in this case, and of the individual who hires two laborers in harvest, or two carpenters to erect a staging and shingle his house, are to be determined by the same legal tests. This case is between master and servant, and is to be carefully distinguished from a case between common carrier and passenger, as there may be no foundation in the former for the peculiar principles applicable in the latter. Bailees are held to different degrees of care in different kinds of bailment, as between themselves and the other parties to the contract of bailment; but all bailees, as between themselves and their servants, must be held to a degree of care fixed
If the employer’s contract with his workmen is, that he will use ordinary care in the employment of other workmen, but that he will not guarantee their carefulness, and if he use such care, and, by the negligence of one of them another of them is injured, the employer is not liable, the common rule of torts, that the act of the servant is the act of the master, being suspended as to that case by the contract. But if a third person, not a party to the contract between the master and servant, is injured by the fault of the servant, his right of action against the master does not depend upon, and is not limited by that contract. The servant has agreed to bear, and is paid for bearing the risks incident to the service; the stranger has not made such an agreement, and is not paid for bearing such risks.
And if the contract, implied on the part of the servant, is to bear the risks only of the business in which he is engaged, and not the risks of other business, he would not be prevented by his contract from maintaining an action against the master, if he were injured by the negligence of another servant of the same master, engaged in other business. His remedy would be restricted by the contract only as to the negligence of fellow-servants engaged in the same general service, or those employed in the conduct of one common enterprise or undertaking, or those whose employment is such that, by their negligence in the usual line of their duty, he might reasonably expect to be endangered, or those whose negligence might be understood to be incident to his service.
There being an express agreement between the master and servant to do certain work and to pay for that work, but no express agreement as to the care to be exercised, the liabilities to be assumed, or the risks to be borne by either, the most reasonable contract is to be implied on
A contract is implied, on the part of the servant, that he assumes the apparent risks, as well as those generally incident and ordinarily and reasonably to be expected in the service. Assop v. Yates, 2 H. & N. 768. He engages to bear the special perils which he knows actually to exist in his particular service, as well as the dangers generally appertaining to such business. If an engineer undertakes to run an engine which he knows to be defective and peculiarly liable to burst, he has no remedy for an explosion to which he voluntarily exposes himself. If he would have the visible or known risks-borne by his employer, he should insist upon an express stipulation to that effect in the contract; no such stipulation can reasonably be inferred. And if the servant takes the risks of known defects of machinery, it would seem that he also assumes, to some extent, the risks of known incompetency and insufficiency of fellow-servants. Skipp v. E. C. R. Co., 9 W. H. & G. 223.
In the present state of this case we are not called upon to determine what rule, as to the liability of a master to a servant, for the negligence of a fellow-servant,
Demurrer overruled.