Johnson v. City of Boston

118 Mass. 114 | Mass. | 1875

Wells, J.

Assuming that the city would be liable to a stranger receiving injury from such negligence as is charged in this case, on the part of the foreman of the sewer department and those directly employed under him, the question then is whether the plaintiff was engaged in the same employment, so as to be a fellow servant with those of whose negligence he complains.

In determining this question, the fact that the defendant is a corporation of special and limited powers and capacities may be laid out of sight. The ground on which the action is sought to be maintained is that the persons engaged in excavating for the sewer, who were employed in behalf of and paid directly by the defendant, were its servants, for whose negligence, as such servants., the city is liable.

The plaintiff was also engaged in the prosecution of the same work, and substantially in the same branch of the work, to wit, the excavation. While at work he was “ under the direct charge and management” of the same foreman, and the “ general supervision of the defendant’s superintendent of sewers.” There was no contract in regard to the removal of the rock, which placed the service of drilling and blasting upon a footing different from any other part of the work. So that if Tinkham, the plaintiff’s immediate employer, had been the person injured, while engaged in the same work, he ‘would clearly have been in the position of a fellow servant with those who excavated the earth. The only point of difference in the position of the plaintiff is that, by virtue of a previous agreement between himself and Tinkham, the latter was entitled to determine whether and how long he should be employed upon any part of the defendant’s work, and to receive from the defendant the compensation due for such service. But while he was so employed he was in the service of the defendant, doing the work of the defendant, of which Tinkham had no control, and in the result of which he had no further interest than to receive the stipulated or reasonable rate of wages as for a personal service. The existence of this general relation of master and servant between the plaintiff and Tinkham does not exclude a like relation with the defendant, to the extent of the special service in which he was actually engaged. This was decided in Kimball v. Cushman, 103 Mass. 194, as to liabilities to strangers for the negligence of one employed in a special service. The result of the discussion, and of the authorities cited in Hilliard v. Richardson., 3 Gray, 349, would seem to be that while engaged upon the work of excavating the sewer the plaintiff was the servant of the defendant so far as to make the defendant liable to strangers for his negligent conduct in that work.

He must also be regarded as in the service of the defendant, so as to make him a fellow servant with the foreman and other workmen engaged in excavating the sewer. The reason usually assigned for the rule in regard to fellow servants, that in entering the service each one is presumed to take into account all the ordinary risks of the business upon which he enters, including negligence of fellow servants, applies to the plaintiff as well as it would to his immediate or general employer Tinkham. If his engagement with Tinkham did not contemplate the temporary transfer of his services to the control and direction of others, as ais were transferred to that of the defendant’s foreman upon this work, then he himself, bj assenting to that transfer and voluntarily engaging in the work as a servant of the defendant, assumed the liabilities and consequences that follow from the existence of that relation. The case of Wiggett v. Fox, 11 Exch. 832, is directly in point.

The cases cited for the plaintiff are mostly those of persons employed to do some part of a more extensive work, under a contract which did not imply the relation of master and servant between the principal contracting parties ; and therefore would not make those, who were employed by one to do the specific work contracted for, the servants of the other, nor fellow servants with those employed generally upon the work by the other.

In this case the contract between Tinkham and the defendant was one for rendering service as such; and whoever engaged in its performance was engaged in the service of the defendant, and was a fellow servant with the others who were similarly employed upon the same work. The ruling at the trial was correct, and there must accordingly be

Judgment on the verdict for the defendant.