delivered the opinion of the court.
In Railroad Company v. Norwood, 62 Miss. 565, we held the engineer to be the servant of the railroad company, though the train in his charge was at the time of the injury sued for in the service of an independent contractor who was doing certain work in the details of which the company had no interest. In that case the controversy was between the railroad company and a citizen, whose mule had been killed by the negligent running of the train, and liability was fixed upon the company. In the case now before us the question is as to the liability of the company for an injury inflicted by the negligence of the engineer upon a laborer employed by the contractor, and who at the time of the injury was in the prosecution of the work for which he had been engaged.
It appears from the statement of McDonald, the contractor, that he had made a contract with the company to excavate a certain cut on its line of road, for which it was to pay him at the rate of sixty cents per cubic yard of earth removed, and in addition was to furnish him with a construction train of twenty cars and an engineer to manage the same. This train was required by the company to be upon the side-track fifteen minutes before the schedule time of each of its trains, and was prohibited by its written orders from running at a greater rate of speed than fifteen miles per hour. The full measure of the contractor’s control over the engineer and train, as stated by him, was that- “ when the train was loaded with dirt, my foreman, Shea, gave a signal, and the engineer pulled the train- out to the place of deposit, and when the laborers had thrown
The appellant denies responsibility on the ground that the engineer was a fellow-servant with the plaintiff, who is, therefore, precluded from recovering for an injury arising from his negligence, and upon the further ground that having engaged in a dangerous service, known to be such, he assumed the risk incident to it, and volenti fit non injuria. The correctness of the decision in R. R. v. Norwood is not challenged by the appellant, but reliance is placed upon a class of decisions, few in number, in which it seems to be held that the servants of an independent contractor and those of his principal, if engaged in a common work, are as between themselves fellow-servants within the rule which denies recourse against the principal for an injury resulting from the negligence of his servant.
This seems to be the established doctrine in Massachusetts. Johnson v. City of Boston, 118 Mass. 114 ; Harkins v. Standard Co., 122 Mass. 400. It is difficult to determine just what was decided in the case of Cox v. R. R. Co., 21 Ill., relied on by appellant, or the ground upon which the decision was made. In that ease the company had contracted with Bennett & Scott to deliver a
The court in one part of its opinion says : “ We shall consider for the purposes of this case that all the parties, as well Bennett & Scott as their hired hands, were employees of the company. We consider it as proved that all persons on the train were employed by the company in the same service.” If the facts warranted this, the case is in harmony with the general current of authorities on the subject. But again, the court found as a fact that the accident was caused “by the unskillful manner in which the wood was loaded upon the cars, in doing which the deceased was an actor.” If this was true, the company was not liable, because the negligence was not that of their servant, the engineer, but of the deceased and his colaborers. But the court, continuing, reversed its position and declared that “all the hands hired by Bennett & Scott, who were contractors to furnish the wood, and who had control of the engine and train, were engaged in the same business,” etc, thus indicating that the engineer and the laborers were fellow-servants to the contractors, and if they were the company was not liable, because the engineer was not its servant.
But the doctrine of the Massachusetts court is supported in its fullest extent by the case of Wiggett v. Fox, 11 Ex. Rep. 832. In that case the plaintiff’s intestate had been injured by the negligence of the servant of a principal contractor, he himself being in the service of a sub-contractor and engaged in work on the same building. The court, by Alderson, B., said: “ Here both the servants were, at the time of the injury, doing the common work of the contractors, the defendants, and we think that the sub-contractor and all his servants must be considered as being, for this
In Abraham v. Reynolds, the plaintiff, a servant of J. & Co., who were employed by the defendants to carry cotton from aware-house, was receiving the cotton into his lorry when, in consequence of the negligence of the defendants’ porters in lowering the bales from the upper floor, a bale fell upon him, and it was held that the plaintiff and the defendants’ servants not being under the same control or forming part of the same establishment, were not so employed upon a common object as to deprive the plaintiff of an action against the defendants. Stress was laid by the judges upon the fact that the servants, though engaged in a common work, were not under the same control or subject to the same orders.
In Murray v. Currie, L. R. 6 C. P. 24, a stevedore employed by the defendant to unload a ship was held to be an independent contractor, and a laborer employed by him having been injured by the negligence of one of the crew, who had also been employed by the stevedore and was subject to his entire control and to be dis
Woodley v. The Metropolitan Railway Co., 2 Exch. Div. Law Rep. 384, and Swainson v. Northeastern Railway Co., 3 Exch. Div. Law Rep. 341, illustrate the diversity of views entertained by the English judges upon this difficult question. In the former case the facts were that the plaintiff, a workman, was engaged by an independent contractor to work in a dark tunnel through which the trains of the defendant passed every six minutes. The tunnel was just large enough to permit the laborers to avoid the passing trains by pressing against its walls, and the laborers could not see an approaching train until it came within twenty or thirty yards of them. The company failed to station a guard to warn the workmen of approaching trains, and the plaintiff was injured by one which came on rapidly and failed to sound the whistle or give any notice of its approach. In the lower court, Kelly, C. B., and Amphlett, B., thought the company liable, while Cleasby, B., doubted its .liability on the ground that the plaintiff, knowing the dangerous character of the work, had nevertheless engaged and continued in it. On appeal, Cockburn, C. J., Mellor and Gore, JJ., agreed in reversing the judgment, while Melish, L. J., and Baggalay, J. A., were in favor of affirmance. The reason given for the reversal was that the plaintiff, having knowledge of the danger of the service, contracted with reference to it and assumed all the risk involved, while Melish and Baggalay, JJ., thought there was liability if the servants of the company through their negligence caused the injury which would not otherwise have happened. Swainson v. Railway was decided in the year following. In that case the plaintiff’s husband was engaged as a signalman by the Great Northern Railway Company and wore its uniform; he served at a station jointly used by the Great Northern and the Northeastern Railways, and by arrangement between the companies his wages were paid by both; as between the two companies he was a
We have reviewed these cases to show the want of unanimity of the judges by whom they were decided and the reasons given by those who assert non-responsibility by the master for the negligence of his servant. We repudiate the proposition that one engaged in a dangerous occupation, known to him to be such, may not recover for an injury negligently inflicted by the servant of another engaged in the same work. It must be admitted that the general rule is responsibility by the master for the negligence of his servant in the performance of his work from which injury re-
But what room is there for the application of this rule as between parties who do not stand in any contractual relation ? Or why should a fanciful and imaginary contract be made and supplied by the courts to relieve from liability ? That an occupation is dangerous does not make it unlawful; nor is negligence lawful because occurring in a dangerous enterprise. If my business calls me to cross a dangerously crowded street, the circumstances under which I am placed demand a greater care and the exercise of greater watchfulness to avoid danger, failing in which I may be denied an action against another who has also been guilty of the same negligence. But suppose I do exercise all the prudence which my situation requires ? Shall I then, who am innocent, be ridden down by one who is negligent, and when appealing to the law for redress be answered that I took the chances of injury ? And if I may recover against the person by whom the injury is inflicted, why may I not hold to a like responsibility him whose servant inflicted it ? It devolves upon those who advance this • view to show some rule of law which relieves the master of the negligent servant, and if any such rule exists it has not been pointed out in a single case to which we have been referred. We understand the law to be that one who engages in a dangerous enterprise assumes the risk of such injuries as he may receive, provided they are not caused by the negligent, and therefore unlawful, act of another. But dangerous occupations demand a correlatively greater care on the part of all persons engaged in them, and one guilty of a want of that care which the law imposes on him, and resulting in injury to an innocent person, cannot escape the obligation of making reparation to the innocent by showing that the service in which he was engaged was in itself of a dangerous
The second instruction given for the plaintiff is substantially correct. It is true, our statute, Code of 1880, § 1059, does not apply, and it is probable the instruction was intended to announce that it did. But it is undoubtedly true that the accident resulted from a collision with a cow, and that being so, it devolved on the company to show the collision to-have been without negligence on the part of its servants. R. R. Co. v. Trotter, 60 Miss. 446 ; Hutch, on Car. 801. Judgment affirmed.