130 Ind. 321 | Ind. | 1892
The material facts alleged in the complaint
To this complaint the circuit court sustained a demurrer, and the propriety of this ruling is the only question for our consideration.
The complaint is drawn upon the theory that the facts therein stated constitute the section foreman, McCleary, a vice-principal, and the appellant seeks, in this court, to convince us that the complaint, upon that theory, states a cause of action. On the other hand it is contended by the appellee that, under the facts alleged in the complaint, it appears that the section foreman was a fellow-servant with the appellant, for whose negligence the appellee is not liable. The matter, then., for decision by this court is as to whether the section foreman, under the facts alleged in the complaint, was a vice-principal or a fellow-servant.
The rule in this State that the master is not liable to his servant for an injury occasioned by the negligence of a fel
It is also settled that the question of rank, in most cases, throws no light upon the inquiry as to whether two persons were, or were not, at a given time, fellow-servants, for it is not a question of rank. Drinkout v. Eagle Machine Works, 90 Ind. 423; Indiana Car Co. v. Parker, 100 Ind. 181; Taylor v. Evansville, etc., R. R. Co., 121 Ind. 124.
Notwithstanding the fact that the general rule which holds the master is not liable to his servant for the negligence of a fellow-servant is well understood, it is often difficult to determine, from a given state of facts, who are, and who are not, fellow-servants. Ever since the decision in the case of Priestley v. Fowler, the first decision upon the subject, decided in England in the year 1837, and reported in 3 Mees. & W. 1, judges and text-writers have attempted to lay down some rule or formula by which to determine what servants of a common master may be said to be fellow-servants.
Judge Cooley says: “Persons are fellow-servants where they are engaged in the same common pursuit under the same general control.” Cooley Torts, p. 541, note 1.
Judge Thompson says: “All who serve the same master, work under the same control, derive authority and compensation from the same common source, are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants, who take the risk of each other’s negligence.” Thompson Negligence, p. 1026, section 31.
Mr. Wood says: “The true test of fellow-service is the community in that which is the test of service, which is subjection to the control and direction of the same common master, in the same common pursuit.” 3 Wood Ry. Law, section 338.
Mr. Beach says: “All servants in the employ of the same master, subject to the same general control, paid from a common fund, and engaged in promoting or accom
It is said that all these rules are faulty, and of little practical use, by reason of their being stated so broadly and in such general and comprehensive terms.
The question as to whether the relation of fellow-servants exists in a given case- is, in our opinion, determined by an inquiry into the nature of the service at the particular time in question. If, at the time the offending servant performed the act by which another servant was injured, he was in the performance of a duty which the master owed to his servants, he was not a fellow-servant, for the rule is fundamental that the master can not rid himself of the duty he- owes to his servants by delegating his authority to another, and ,if x he attempts to do so, the person to whom he delegates the power to act is a vice-principal, and not a fellow-servant. McKinney Fellow-Servants, section 23; Indiana Car Co. v. Parker, supra; Pennsylvania Co. v. Whitcomb, 111 Ind. 212; Krueger v. Louisville, etc., R. W. Co., 111 Ind. 51; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20; Louisville, etc., R. W. Co. v. Sandford, 117 Ind. 265; Cincinnati, etc., R. W. Co. v. Lang, 118 Ind. 579.
On the other hand, if at the time of the alleged negligence the servant was not engaged in the performance of a duty which the master owed to his servants, but was in the discharge of a duty which the servant acting owed to the master, he will be held to be a fellow-servant with others engaged in the same common business, and the master will not be liable for any injury inflicted upon such fellow-servant by reason of his negligence.
That a section foreman may be a vice-principal is not doubted. In this case he was a vice-principal in the matter of hiring and discharging hands, for the master owes it as a duty to exercise reasonable care not to employ any but careful men, and to discharge those who prove to be negligent-.
The negligence alleged against the foreman in charge of the appellant is that he failed to apply the brake, and failed to object or protest against the conduct of those who ran their hand-car against the one in his charge. Had he acted as brakeman, under the circumstances disclosed in this case, he would have been acting as a fellow-servant with the appellant, and not as vice-principal. Indeed, the only matter in which he did not act as a fellow-servant was the matter of employing and discharging servants.
For these reasons the complaint before us does not state a cause of action, and the court did not err in sustaining a demurrer thereto.
Judgment affirmed.