28 A. 659 | R.I. | 1894
The declaration in this case states, (1) that the plaintiff was in the employ of the city of Providence as flagman to a steam roller used in repairing streets; (2) that he was subject to the orders of the engineer of said roller, also in the employ of the city, and liable to discharge by him; (3) that while so employed the engineer carelessly and suddenly started the roller, without warning to the plaintiff, with great noise, frightening a span of horses used by said city so that they ran into and injured the plaintiff.
These allegations, on demurrer, raise very pointedly the application of what is called the fellow servant rule. The plaintiff concedes that this rule is applicable to municipal *508
corporations and we can see no reason why it should not be. Indeed, there is stronger reason for including municipal corporations within its protection than there is for including private business corporations. It has been so applied. Flynn v.Salem,
At the close of the section cited above, Mr. McKinney says: "On the other hand the entire doctrine of the liability of the master for a superior's tort to an inferior, is unequivocally repudiated by courts whose number and authority (saving the United States Supreme Court) outweigh that of those favoring the doctrine." In view of the Baugh case it *510
would seem that the "saving" clause may now be omitted. In Mann
v. Oriental Print Works,
Another limitation, and that which is most strongly pressed in this case, is that of a servant acting as a vice principal and so not a fellow servant with other employees. This is a sound and necessary limitation. It is self explanatory. When a master commits his duty to another person, whether a servant or not, such person stands in the place of the master; he is a vice principal with reference to that duty and the master is responsible for his act as such. Simple as this rule is there has been much confusion in its application. Thus, beginning withLittle Miami R.R. Co. v. Stevens, 20 Ohio 415, it has been held that every superior servant is a vice principal as to those under him. In some cases this is mere dictum, e.g. Cowles v.Richmond Danville R.R. Co.,
Other cases have held that the power to hire and discharge *511
help makes one a vice principal. For example, it is said inPatton v. Western N.C.R.R. Co.,
The demurrer was rightly sustained in the court below, and the petition for a new trial is denied.