delivered the opinion of the court.
Plaintiffs in error, the widow and child of W. C. Hough, deceased, seek in this- action to recover against the Texas and, Pacific Railway Company damages, compensatory and exemplary, on account of his death, which occurred in 1874, while he was in its employment as an engineer.
In substance, the case is this: —
The evidence in behalf of the plaintiffs tended to show that the engine of which deceased had charge, coming in contact with an animal, was thrown from the track, over an embankment, whereby the whistle, fastened to the boiler, was blown or knocked out, and from the opening thus made hot water and steam issued, scalding the deceased to death; that the engine was thrown from the track because the cow-catcher or pilot was defective, and the whistle blown or knocked out because it was insecurely fastened to the boiler; that these defects were owing to the negligence of the company’s master-mechanic, and of the foreman of the round-house at Marshall; that to. the former was committed the exclusive management of the motive-power of defendant’s line, with full control over all engineers, and with unrestricted power to employ, direct, control, and discharge them at pleasure; that all engineers
The evidence in behalf of the company conduced to show that the engine was not defective ; that due care had been exercised, as well in its purchase as in.the selection of the officers charged with the duty of keeping it in proper condition; that the defective cow-catcher or pilot was not the cause of the engine being thrown from the track; that the whistle wаs securely fastened, and did not blow out, but the cab being torn away, the safety-valve was opened, whereby the deceased was scalded; that if any of the alleged defects existed, it was because of the negligence of the master-mechaijiic and the foreman of the round-house, for which negligence the company claims that it was not responsible.
The principal question arising upon the assignments of error requires the consideration, in some of its aspects, of the general rule exempting the common master from liаbility to one servant for injuries caused by the negligence of a fellow-servant in the same employment.
' “ The general rule,” said Chief Justice Shaw, in
Farwell
v.
Boston & Worcester Railway Corporation
(4 Metc. (Mass.) 49), “ 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 contemplation the compensation is adjusted accordingly. And we are not aw'are 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.
To prevent misapprehension as to the scope of the decision, he deemed it necessary, in a subsequent portiоn of his opinion, to add : “We áre far from intending to say that there are no 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 the 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 reprеsentative and managing agent, in case of an incorporated company, — are questions on which we give no opinion.”
As to the. general rule, very little conflict of opinion is to be found in the adjudged cases, where the court has been at liberty to consider it upon principle, uncontrolled by statutory regulations. The difficulty has been in its practical application to the special circumstances of particular cases. What a,re the natural and ordinary risks incident to the work in which the servant engages; what are the perils which, in legal contemplation, are presumed to be adjusted in the stipulated compensation ; who, within the true sense of the rule, or upon grounds of public policy, are to be deemed fellow-servants in the same common adventure or undertaking, — are questions in reference to which much contrariety of opinion exists in the courts of the several States. Many of the cases are very wide apart in the solution of those questions.
. It would far exceed the limits to be observed in this opinion to enter upon an elaborate or critical review of the authorities upon those several points. Nor shall we attempt to lay down any general.rule applicable to all cases involving the liability of the common employer to one employe for the negligence' of a co-employé in the same service. It is sufficient to say, that, while the general doctrine, as stated by Chief Justice Shaw, is sustained by elementary writers of high authority, and by numerous adjudications of the American and English courts, there are well-defined exceptions, which, resting as they clearly
One, and perhaps the most important, of those exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound tо observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter. It is implied in the contract between the parties that the servant risks the dangers which ordinarily attend or are incident to the business in which he voluntarily engages for compensation; among which is the carelessness of those, at least in the same work or employment,, with whose habits, conduct, and capacity he has, in the course of his duties, an opportunity tо become acquainted, and against whose neglect or incompetency he may himself take such precautions as his inclination or judgment may suggest. But it is equally implied in the same contract that the master shall supply the physical means and agencies for the conduct of his business. It is also implied, and public policy requires, that in selecting such means he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business. Nor is it one which the servant, in legal contemplation, is presumed to risk, for the obvious reason that the servant who is to use the instrumentalities provided by the master has, ordinarily, no connection with their purchase in the first instance, or with their preservation or maintenance in suitable condition after they have been supplied by the master.
In considering what dangers the servaniris presumed to risk, the court, in
Railroad Company
v.
Fort
(
A railroad corporation may be controlled by competent, watchful, and. prudent directors, who exercise the greatest caution in the selection of a superintendent or general manager, under whose supervision and orders its affairs and business, in all of its deрartments, are conducted. The latter, in turn, may observe the same caution in the appointment of subordinates at the head of the several branches or departments of the company’s service. But the obligation still remains to provide and maintain, in. suitable condition, the machinery and apparatus to be used by its employés, — an obligation the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered. Those, at least, in the organization of the corporation, who are invested with controlling or superior authority in that regard represent its legal personality ; their negligence, from which injury results, is the negligence of the corporation. The latter cannot, in respect of such matters, interpose between it and the servant, who has been injured, without fault on his part, the personal responsibility of an agent who, in exercising the master’s authority, has violated the duty he owes, as well to the servant as to the corporation.
To guard against misapplication of these principles, we should say that the corporation is not to be held as guaranteeing or warranting the absolute safety, under all circumstances, or the perfection in all of its parts, of the machinery or apparatus which may be provided for the use of employés. Its duty in that respect to its employés is discharged when, but only when, its
A leading case upon the question before us is
Ford
v.
Fitchburg Railroad Co.,
But the court said: “ The rule of law which exempted the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the exercise оf ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required. One who enters the employment of another has a right to count on this duty, and is not required to assume the risks of the master’s negligence in this respect. The fact that it is a duty which must always be discharged, when the employer is a corporation, by officers and agents, does not relieve the corporation from that obligation. The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule reliеd on, to be regarded as fellow-servants of those who are engaged in operating it. They are charged with the master’s duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require.” In a subsequent portion of the same opinion, the court said: “ The corporation is equally chargeable, whether the.negligence was in originally failing to provide, or in afterwards failing to keep its machinery in safe condition.”
The same views, substantially, are expressed by Mr. Wharton in his Treatise on the Law of Negligence. The author (sect. 211) says: “ The question is that of duty; and, without making the unnecessary and inadequate assumption of implied
The current of decisions in this country is in the same direction, as will be seen from an examination of the authorities, some of which are cited in the note at the end of this opinion.
It is, however, insisted that the defence is sustained by the settled course of decisions in the English courts. It is undoubtedly true, that the general doctrine of the immunity of the master from responsibility for injuries receivеd by his servant from a fellow-servant in the same employment has, in some cases, been carried much further by the English than by the American courts. But we cannot see .that, upon the
The question came before the House of Lords in
Paterson
v.
Wallace
(1 Macq. H. L. Cas. 748), and again, in 1858, in
Bartonshill Coal Co.
v.
Reid,
3 id. 266. In the last-named case, Lord Cranworth said that it was a principle, established by many preceding cases, “ that when a master employs his servant in a work of danger he is bound to exercise due care in order to have his tackle and machinei-y in a safe and proper condition, so as to protect the servant against unnecessary risks.” This he held to be the law in both Scotland .and England. At the same sitting of the House of Lords,
Bartonshill Coal Co.
v.
McGuire
(3 id. 307) was determined. In that case, Lord Chancellor Chelmsford delivered the principal opinion, concurring in what was said in the Reid case. After referring to the general doctrine as announced in
Priestley
v.
Fowler,
and recognized subsequently in other cases in the English courts, he said: “In the consideration of these cases it did not become necessary to define with any great precision what was meant by the words ‘ common service ’ or 6 common employment,’ and perhaps it might be difficult beforehand to suggest any exact definition of them. It is necessary, however, in each particular case to ascertain whether the fellow-
Upon the same occasion,-Lord Brougham, referring to the' remark of a Scotch judge to the effect that an absolute and inflexible rule, releasing the master from responsibility in every case where one servant is injured by the fault of another, was utterly unknown to the law of Scotland, said: “ But, my lords, it is utterly unknown to the laws of England also. To bring the case within the exemption, there must be this most material qualification, that the two servants shall be men in the same common employment, and engaged in the same common work under that employment.” 3 id. 313.
An instructive case is Clarke v. Holmes, decided in 1862, in, the Exchequer Chamber, upon appeal from the Court of Exchequer, 7 H. & N. 937. There, the plaintiff was employed by the defendant to oil dangerous machinery, and he was injured in consequence of its remaining unfenced. He had complained of the condition of the machinery, and the manager of the defendant, in the latter’s presence, promised that the fencing should be restored. In the course of the argument, counsel for the defendant relied upon Priestley v. Fowler, claiming it to have decided that whenever a servant accepts a dangerous occupation he must bear the risk. He was, however, interrupted by Cockburn, C. J., with the remark, “ That is, whatever is fairly within the scope of the occupation, including the negligence of fellow-servants; here, it is the negligence of the master.” Crompton, J., also said: “ It cannot be made part of the contract, that the master shall not be liable for his-own negligence.”
In the opinion delivered by Cockburn,n C. J., it was said:
Byles, J.: “ But I think the master liable on the broadei ground, to wit, that the owner of dangerous machinery is bound to exercise due care that it is in a safe and proper condition. . . . The master is neither, on the one hand, at liberty to neglect all care, nor, on the other, is he to insure safety, but he' is ■ to use due and reasonable care. . . . Why may not the master be guilty of negligence by his manager or agent, whose employment may be so distinct from that of the injured servant that they cannot Avith propriety be deemed fellow-servants ? And if a master’s personal knowledge of defects in his machinery be necessary to his liability, the more a master neglects his business and abandons it to others the less will he be liable.”
To the same effect is the recent case of Murray v. Phillips, decided in 1876 in the Exchequer Division of the High Court of Justice. 35 Law Times Rep. 477.
It is- scarcely necessary to say that the jury Avere not correctly informed by the court below as to the legal principles governing this case. It is impossible to reconcile the general charge or the specific instructions with the rules Avhich we have laid down. They were, taken together, equivalent to a peremptory instruction to find for the company. The jury may have believed, from the evidence, that the defects complained of constituted the efficient proximate cause of the death of the
One other question, arising upon the instructions, and which has been discussed, with some fulness, by counsel, dеserves notice at our hands. It is contended by counsel that the engineer was guilty of such contributory negligence as to prevent the plaintiffs from recovering. The instruction upon that branch of the case was misleading and erroneous.
The defect in the engine, of which the engineer had knowledge, was that which existed in the cow-catcher or pilot. It is not claimed that he was' aware of the insufficient fastening of the whistle, or that the defect, if any, in that respect, was of such a character that he should have become advised оf it while - using the engine on the road. But he did have knowledge of the defective condition of the cow-catcher or pilot, and complained thereof to both the master-mechanic and the foreman of the round-house. They promised that it should be promptly remedied, and it may be that he continued to use the engine in the belief that the defect would be removed. The court below seem to attach no consequence to the complaint made by the engineer, followed, as it was, by explicit assurances that the defeсt should be remedied. According to the instructions, if the engineer used the engine with knowledge of the defect, the jury should find for the company, although he may have been justified in relying upon those assurances.
If the engineer, after discovering or recognizing the defective condition of the cow-catcher or pilot, had continued to use the engine, without giving notice thereof to the proper officers of the company, he would undoubtedly have been guilty of such contributory negligence as to bar a recovery, so far as such defеct was found to have been the efficient cause of the
And such seems to be the rule recognized in the English courts.
Holmes
v.
Worthington,
2 Fos. & Fin. 533;
Holmes
v.
Clarke,
6 H. & N. 937;
Clarke
v.
Our attention has been called to two cases determined in the Supreme Court of Texas, and which, it is urged, sustain the principles announced in the court below. After a careful consideration of those cases, we are of opinion that they do not necessarily conflict with the conclusions we have reached. Be this as it may, the questions before us, in the absence of statutory regulations by the State in which the cause of action arose, depend upon principles of general law, and in their determination we are not required to follow the decisions of the State courts.
Judgment reversed, and cause remanded, with directions to set aside the verdict and award a new trial, and for such other proceedings as may be consistent with this opinion.
Note. —