129 Mass. 268 | Mass. | 1880
It is well settled in this Commonwealth, and in Great Britain, that the rule of law, that a servant cannot maintain an action' against his master for an injury caused by the fault or negligence of a fellow-servant, is not confined to the case of two servants working in company, or having opportunity to control or influence the conduct of each other, but extends to every case in which the two, deriving their authority and their compensation from the same source, are engaged in the same business, though in different departments of duty. Farwell v. Boston & Worcester Railroad, 4 Met. 49. Bartonshill Coal Co. v. Reid, 3 Macq. 266. Morgan v. Vale of Neath Railway, 5 B. & S. 570, 736, and L. R. 1 Q. B. 149. Wilson v. Merry, L. R. 1 H. L. Sc. 326.
In Farwell v. Boston & Worcester Railroad, which has long been considered, both in this country and in England, the leading case upon the subject, Chief Justice Shaw, in delivering the judgment of the court, said: “ The general rule, resulting from considerations as well of justice as of policy, is, 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, and, in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation
In that case, the business of a railroad corporation, within the meaning of the rule, was defined to be “ to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire; ” 4 Met. 55; and it was held, that a railroad corporation was not liable to the driver of the locomotive engine of a passenger train for an injury sustained in consequence of the negligence of a switchman in the management of a switch. Upon the same principle, it has been held by this court, that an apprentice acting as fireman of a locomotive engine is a fellow-servant with those employed to construct switches on the tracks of the railroad; King v. Boston & Worcester Railroad, 9 Cush. 112; that a laborer employed to repair the road-bed, or a carpenter employed to repair bridges and fences and to do like work on the line of the railroad, is a fellow-servant with those in charge of the train by which he was being carried to his place of labor; Gillshannon v. Stony Brook Railroad, 10 Cush. 228; Seaver v. Boston & Maine Railroad, 14 Gray, 466; and that a carpenter employed in the repair shop, and being so carried, is a fellow-servant with a flagman or switchman. Gilman v. Eastern Railroad, 10 Allen, 233, and 13 Allen, 433. The rule has been steadfastly upheld by the English courts under
Nothing was decided in Ford v. Fitchburg Railroad, 110 Mass. 240, inconsistent with this view. The meaning of the statement on page 260, “ The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it,” is explained by the sentence that immediately follows, “They are charged with the master’s duty to his servant.” The decision in that case was, that if a railroad corporation, acting by its proper officers and agents, did not use due care in keeping a locomotive engine in repair, the driver of the engine might maintain an action against the corporation for personal injuries caused by the defective condition of the engine; and that there was no error in a refusal to instruct the jury that the corporation was not liable, unless the plaintiff proved that the president, directors or superintendent either personally knew, or by the exercise of reasonable care in the performance of their duties might have known, that the engine was defective, or that the persons employed to have the charge of it and keep it in repair were incompetent; because, as was said in the opinion, “ the question was not whether the officers named knew, or might have known, of the defect, or of the incompetency of those who had charge of the repairs, but whether the corporation in any part of its organization, by any of its agents, or for want of agents, failed to exercise due ca.re to prevent injury to the plaintiff from defects in the instrument furnished for his use.” 110 Mass. 261.
The reasons and the limits of the rule, so applied, are clearly brought out in the judgments delivered in the House of Lords in Wilson v. Merry. In that case, the defendants, who were coal and iron masters, had used due care in selecting the sub-manager of a coal pit, and had furnished him with all necessary implements and resources for working the pit, and there was no defect in the general system of ventilation; the submanager, in order to open a seam of coal, built a scaffold which obstructed the circulation of ah beneath, and caused an accumulation of fire-damp, which exploded and injured a workman in the mine; and for this injury the action was brought.
Lord Chancellor Cairns stated the reason of the general rule substantially in the same way as Chief Justice Shaw had done in 4 Met. 60, above cited, and said: “ The master is not, and cannot be, liable to his servant, unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business.” “ But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and
Lord Cranwort h said: “ In order effectually to carry on the work, it was necessary that a scaffolding should be fixed under the superintendence of an underground manager, and when so fixed it was necessary that workmen should be employed at it in excavating the mine under similar superintendence.” “If, indeed, the owners had failed to take reasonable care in causing the scaffold to be erected, the case would have been different, but of this there is no evidence. It certainly was not incumbent on them personally to fix the scaffold. They discharged their duty when they procured the services of a competent underground manager.” L. R. 1 H. L. Sc. 334, 335.
Lord Chelmsford pointed out the distinction between that “system of ventilation and putting the mine into a safe and proper condition for working,” which “ it was the duty of the master for whose benefit the work is being carried on to provide,” and the system of what might be called “local ventilation,” which it became necessary to arrange in the course of working the pit, and which must be considered as part of the mining operations; and observed that, even if the accident happened in consequence of the scaffold in the particular seam having, under the submanager’s orders, been so constructed as to obstruct the necessary ventilation, it would have been the result of negligence in the course of working the mine, and one of the risks incident to the employment. L. R. 1 H. L. Sc. 336, 337.
Lord Colonsay said: “ I think that there are duties incumbent on masters with reference to the safety of laborers in mines and factories, on the fulfilment of which the laborers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable negligence in supervision, if the master takes the supervision on himself; — or, where he devolves it on others, the heedless selection of unskilful or incompetent persons for the duty, — or the failure to provide, ot
. In Farwell v. Boston & Worcester Railroad, Chief Justice Shaw said: “We are far from undertaking to say that there areno implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, the employer would be responsible to an engineer for a loss arising from a defective or ill-constructed steam-engine: Whether this would depend upon an implied warranty of its goodness and sufficiency, or upon the fact of wilful misconduct or gross negligence on the part of the employer, if a natural person, or of the superintendent or immediate representative and managing agent, in case of an incorporated company — are questions on which we give no opinion.” 4 Met. 62.
By subsequent decisions it has been settled that the master, whether a natural person or a corporation, is bound to use reasonable care in selecting his servants, and in keeping the engines with which, and the buildings, places and structures in, upon or over which, his business i? carried on, in a fit and safe condition, and is liable to any of his servants for injuries suffered by them by reason of his negligence in this respect. Cayzer v. Taylor, 10 Gray, 274. Snow v. Housatonic Railroad, 8 Allen, 441. Gilman v. Eastern Railroad, above cited. Coombs v. New Bedford Cordage Co. 102 Mass. 572. Huddleston v. Lowell Machine Shop,
It is difficult, if not impossible, to lay down a more definite rule applicable to all cases. As to switches or turn-tables upon the line of a railroad, the employment of suitable persons to select, construct or inspect has been held to satisfy the obligation of the corporation. King v. Boston & Worcester Railroad, Suffolk, November Term 1851; S. C. 9 Cush. 112.
If a railroad corporation has suffered a structure, not actually in use for the purposes of its business, to remain for an unreasonable length of time, on land within its control, in such a position by the side of its track as to be in danger of being thrown down by ordinary natural causes so as to interfere with the safe passage of its trains, the structure is in law a nuisance, and the corporation is liable to servants employed upon its passing trains, as well as to other persons, for injuries resulting from its own neglect in not removing the structure, or in not guarding against the danger of allowing it to remain in such a place, whether it was originally put there by other servants of the corporation or by strangers, and independently of the question of negligence on the part of those who placed it there.
In the case at bar, the workmen employed in widening the railroad were fellow-servants of the brakemen on the trains; and it being admitted that the derrick was suitable for the work for which it was designed, and there being no evidence of negligence on the part of the corporation in selecting or instructing the workmen, any negligence of theirs in setting up or using the derrick is the negligence of fellow-servants of the plaintiff, for which the defendants cannot be held liable in this action.
But the evidence at the trial tended to show that the derrick had remained unused by the side of the track, dangerously near an overhanging bank of earth and stones, in plain view, and with a guy loosely stretched across the track (though at a sufficient height when the derrick was upright to clear the passing trains) for at least ten days while the weather was alternately
That was an action against a railroad corporation by an apprentice employed in its machine shop, and acting at the time, without additional compensation, as fireman of a locomotive engine, for an injury caused by the breaking of a switch at the junction of the Brookline Branch with the main track of the defendant’s railroad. The report in 9 Cush. 112-115 states that the full court held that “ the case distinctly shows that there was no want of ordinary care and diligence on the part of the defendants; ” but omits to state that part of the case which related to this point, and which in the judge’s report on file is as follows: “ To prove the nature of the defect in the switch and the cause of the accident, the plaintiff called as a witness Benjamin Wallace, who testified as follows: I was employed as second foreman in the machine shop of the defendants. Mr. Woodworth was foreman. The joint of the switch-rod, which broke at the time of the accident, was made at the shop of Mr. Wilmarth in South Boston. It was sent there to be made, because our machine shop was so full of work at the time that we could not make it. After the work was done at Wilmarth’s, it was sent to our shop; • and to complete it, ready for the switch, I put into the centre an iron rod six feet long. This was the switch-rod of the Brook-line Branch. I cannot say Mr. Woodworth saw or inspected it. All I did to it was to put in the connecting centre-piece. It was part of my business to attend to switches at the crossing of the Tremont Bead. When I put in the connecting centre-piece, I looked at the joint which afterwards broke, and thought it was sufficiently safe. It was a new patent switch-rod, got up by Mr. Parker, the superintendent of the railroad; it was intended to move four tracks, and moving the switch operated on the joint; but there was nothing peculiar in the joint, it was like all switch-rod joints, the novelty consisting in the length of the rod and the number of tracks it moved, but not in the joint itself.”
