16 F. Cas. 561 | U.S. Circuit Court for the Northern District of Illnois | 1873
The only question is whether there is a sufficient cause of action set out in the declaration. Defendant, being a corporation, can only act through agents, and as there is no allegation that the boat was improperly constructed and so made dangerous to plaintiff, or that the accident in question happened by reason of such defective construction while plaintiff was exercising due care, I cannot see that the allegations of negligence by defendant directly are of any weight, and the case must be considered as standing solely on the allegations as to the negligence of the master and mates.
The master, mates and crew of the vessel were all employes of defendant, each with different duties, but all engaged in a common employment, which at this particular time was that of unloading this boat. But the plaintiff claims that he was acting in an inferior capacity and under the orders of the officers of the boat.
I am aware that there are adjudged cases making the distinction insisted upon by plaintiff. Little Miami R. Co. v. Stevens, 20 Ohio, 415; Gillenwater v. Madison & I. R. Co., 5 Ind. 340; Chamberlain v. Milwaukee & M. Railroad, 11 Wis. 238, 252. But the rule is undoubtedly well settled in this state and England, that an employer is not liable to a servant for injuries occasioned by the negligence of a fellow servant. Honner v. Illinois Cent. R. Co., 15 Ill. 550; Farwell v. Boston W. Railroad, 4 Metc. (Mass.) 49; Illinois Cent. R. Co. v. Cox, 21 Ill. 20; Chicago & A. R. Co. v. Keefe, 47 Ill. 108. I am aware that there is a class of cases in this state holding that a railroad company is liable to an employe for not furnishing safe cars or roadway. Chicago & N. W. R. Co. v. Swett, 45 Ill. 197; Illinois Cent. R. Co. v. Jewell, 46 Ill. 99.
And the same rule, I think, was adopted in this court in the case of Daniel v. C. & R. I. R. R. Co.
Plaintiff must be presumed to possess the usual knowledge in regard to the construction of steamboats, and as there is no allegation that this hatch was in an unusual place, he certainly ought to have known that there was a hatch there. His own senses would tell him it was dark, and admonish him to use care. He was passing from one side of the boat to the other, where he should have known, and, I think, must be presumed to have known, there was a hatchway. It was as much his duty to see that the hatch was closed, or properly protected if open, as it was the captain’s or mate’s. No one, I presume, will claim that it was the duty of the master or mate to close the hatch or hang up a light. They had the general supervision of the boat, and it was their duty to see that each one employed in the work of managing the boat performed the work allotted to him. This is the utmost of their duty, but if they neglected that duty, and the plaintiff was injured by reason of the negligence of a deck hand who should have closed the hatch, or a porter who should have hung up a light, it is but the negligence of a. fellow servant, in and about a common business. There is no charge of incompetency on the part of the officers. And it seems to me the ship-owner eannot be held liable for mere neglect of officers to perform their duty. If he provides a seaworthy ship, properly equipped, and commanded by competent officers, he has discharged his duty toward the subordinates. They must be deem
[Case unreported.]
