31 N.J.L. 293 | N.J. | 1865
The opinion of the court was delivered by
The first count of the declaration.: in this case discloses that the defendants, who are a railroad company, were aware that one of the bridges on the line of their road was out of repair and was unsafe; that they ran, a train of cars, heavily loaded, over it while in this condition, and that it consequently gave way, occasioning the death of the husband of the plaintiff. That these facts would constitute a ground of action in favor of a stranger to the company is not denied, but it is insisted they do not have that effect with regard to one of their own employees. The person who-lost his life by the accident above mentioned was a brakeman in the employ of the defendants, and this suit is brought by his administratrix in conformity with the statute making provision for the recovery of damages in cases where death is caused by a wrongful act. Nix. Dig. 211.
The demurrer to the declaration in this case appears to have been intended to raise the question, whether the defendants are-responsible to one of their employees, for damages resulting from, their carelessness or neglect in keeping their bridge in repair.
That a master who has used due care in the selection and
It will be perceived that the guide to the conclusion reached in these cases was the contract which the law, from the relation of master and servant and on grounds of public policy, implies to exist between them; and, as it seems to. me, the solution of the present question is to be obtained, and without difficulty, by a reference to the same criterion. Was it the understanding of the parties to the contract to hire and, to serve, in the present case, that the company, as to their servant, were to be exempt from responsibility for their own neglect and want of care ?
The first consideration which naturally arises on an examination of this proposition is, that the hazard, which it is. insisted the servant agreed to incur, is not, so far as the master is concerned, one necessarily inherent in the business. It, appears but just and fair and every way reasonable, that the servant should agree to take upon himself the usual, perils of the employment, and over which the party whom he serves has no control. He knows that there will be risk from the want of skill or from the inadvertence and neglect of those associated with him in the conduct of the common business; but these dangers are the necessary, inseparable concomitants of the employment, and there is, certainly, every appearance of justice in the legal implication, that as to. injuries arising from such causes, over which his employer possesses no power, and for the effects of which he is not morally responsible, they shall be borne by the servant. But upon what plausible pretence can it be said, that the
Nor will this result, as it seems to me, be varied if we
And in favor of the same view will be found the body of the cases heretofore decided. Indeed, even in most of the decisions which exonerate the master from the consequences of the injury done to one servant by the carelessness of another, the doctrine is generally accompanied with assumptions or intimations that, for hurtful results from his own omission of a reasonable and proper care, the master would be responsible to his servant. Thus in Tarrant v. Webb, 37 E. L. & Eq. R. 281, both the principle of the master’s responsibility to his servant, when in default himself, and his exemption when the default is that of another servant, is forcibly exemplified' — -for it was there held that if a master use reasonable precautions and efforts to procure safe and skillful servants, but without fault, happen to have one in
On the whole, therefore, on principle as well as apon the decided weight of authority, I conclude that an employer contracts with his employee to use reasonable diligence to protect him from unnecessary risks, and that, for the omission of such diligence, which is equivalent to negligence or want of care, he will be answeiable to the action of such employee for all the damages which may ensue.
To apply, then, the foregoing doctrine to the pleadings contained in this record.
I think it clear that, in strictness, in all the counts the duty of the company to keep up and maintain the bridge in question, is laid down or averred in a form much too broad and unqualified. Prom the relation between the company and their brakeman, the legal consequence seems to have been deduced by the pleader that the former, with regard to the latter, was bound to keep the bridge in a safe condition. This is not a true statement of the obligation of the company. It was not near so absolute; for if the bridge wa& insecure from a secret defect which the company was not able to discern by the exercise of reasonable diligence and skill, no
Judgment should be in favor of the plaintiff on the record as it now stands, with leave, &c.
Cited in McAndrews v. Burns, 10 Vroom 120; Paulmier, Adm’r, v. Erie R. R. Co., 5 Vroom 153.
Rev., p. 294.