Lead Opinion
Curia, per
In the consideration of the question involved in tins case, I shall assume that the verdict establishes the fact that the plaintiff’s injury was the effect of the negligence of the engineer, and then the question arises whether the railroad company is liable to one servant for an injury arising from the negligence of another servant. The business of the company is the transportation of goods and passengers. Its liability in these respects, is, in general, well defined and understood by the profession ; and if the plaintiff’s case came within any of the principles applicable to these cases, we should have no difficulty in deciding it. The application of steam power to transportation on railroads, is of recent origin, but the principle by which the liability of a carrier is fixed and ascertained, is as old as the law itself. There is nothing in the fact, that the defendant is a corporation, except that of necessity it must act altogether by agents. The liability is precisely the same as if the defendant was an individual acting by the agency of others. The principle is the same, whether you apply it to a railroad, a steamboat, a wagon, a stage coach, or a ship. If this plaintiff' is entitled to recover, I can see no reason why the owner of any of the above modes of conveyance, should not be liable under the same circumstances. If the owner of a wagon should employ two men, one to drive and the other to load, and either of them should so negligently perform his work as to injure the other, the owner of the wagon would be liable. The principle will extend to nil the vocations of life wherein more than one person is employed to effect a single object; and a new class of liabilities would arise, which I do not think has ever heretofore been supposed to exist. It is admitted, no case like the present has been found, nor is there any precedent suited to the plaintiff’s case, unless he stands in the relation of a passenger to the company. In this point of view, his counsel has chosen to regard him, for I *understand the declaration alleges ho was a passenger. Now, a passenger is every where spoken of as one who pays for
It was said, in the argument, that if the engineer had been the owner of the road, he would have been liable. Of this I apprehend there would have been no doubt, but then his liability would have arisen, not from his being the owner, but because the injury arose from his own act. That he is now liable, seems to me to admit of no doubt. But it by no means follows as a consequence, that because he is liable, those who employ him are liable also. One acting as agent may subject himself to liability in a variety of cases, for which his principal would not be liable ; and this may be as well in cases of contract as in cases of tort. The extent of the liability of the principal, for the acts of the agent, can, in general, be readily ascertained from the object of the contract, and the relative position of the parties. A passenger desires to be transported from one place to another; the carrier undertakes to do this, and is liable if he fails. It is wholly immaterial by whose default the injury resulted. There has been a breach of the contract, and he has a right to look to him with
In the above observations, I have endeavored to confine myself strictly to the case before the Court. It is not intended to pre-judge other questions, which may arise between the company and its servants; nor do I mean to say, that a case may not occur where the owner, whether an individual or company, will be liable for the acts of one agent to another; but then it must be in such cases as where the owner employs unfit and improper persons as agents, by whose ignorance or folly another is injured. Upon such a case it will be time enough to express an opinion when it arises. The present is not such a ease. The engineer, according to the evidence was competent, though he may have been rash in the particular instance in which the plaintiff’s injury was sustained. He was known to the plaintiff as well as to the company, for it appears by the report that he selected the engineer under whom he was willing or prepared to serve. It seems to me the plaintiff is not, therefore, entitled to retain his verdict, and a motion for a new trial is granted.
Concurrence Opinion
I concur in this opinion, and will only add a word in illustration of iny own views of the question.
The foundation of all legal liability, is the omission to do some act which the law commands, the commission of some act which the law prohibits, or the violation of some contract by which the party is injured. There is no law regulating the relative duties of the owners of a steam car, and the persons employed by them to conduct it. The liability, if any attaches, must therefore arise out of contract. What was the contract between these parties ? The plaintiff, in consideration that the defendants would pay him so much money, undertook to perform the service of fireman on the train. This is all that is expressed. Is there anything more implied ? Assuming that the injury done, was in conse-
Now the plaintiff knew that lie was not to conduct the train alone. He knew that he was to be placed under the control of the engineer. He knew that the employment in which he was engaged was perilous, and and that its success was dependent on the common efforts of all the hands ; and, with proper diligence and prudence, he might have been as well, and it does not follow that he might not have been better, informed than the defendants, about the fitness and security of all the appointments connected with the train. If he was not, it was his own want of prudence, for which defendants are not responsible. If he was he will be presumed to have undertaken to meet all the perils incident to the employment.
There is not the least analogy between this case and that of common carriers of goods or transporters of persons. They arc liable in respect to the price paid. Not so here. The plaintiff paid nothing for liis transportation ; on the contrary, he was to be paid for his labor, and for the perils to which he was exposed, as incident to his employment. No prudent man would engage in any perilous employment, unless seduced by greater wages than he could cam in a pursuit unattended by any unusual danger.
Dissenting Opinion
dissenting. This case was tried by myself, and although, had I been on the jury, I should have found for the defendants, yet there were certainly facts in the evidence, which might have led another to a different conclusion ; and, therefore, I am not disposed to disturb the verdict. This makes it necessary to consider the legal doctrine which I laid down to the jury.
In substance, I held, that if the injury to the plaintiff resulted* from the negligence of the engineer, then the plaintiff was entitled to recover. This doctrine, a large majority of my brethren think erroneous, and however much deference is due to their opinions, yet, as I consider them to be wrong, I think it my duty to state my own views.
This case is one of the first arising out of the conveyance of human beings by locomotives on railroads. It goes beyond the ordinary case of a passenger, and presents a claim on the part of a hired servant, against his employers, for an injury sustained in their service. If it arose out of any of the old-fashioned modes of conveyance, managed by the defendants themselves, could there be a doubt that they would be liable, if the injury resulted from negligence ? Take the case of a stage coach, driven by the owner, and let it be supposed that the plaintiff was hired as a guard, and that he was injured in that employment, by the careless driving of the
Is there any distinction in law as to the effect which the employment of the plaintiff is to have, in the different kinds of service in which he may engage ? I think there is none. If Mr. Tupper, the able and efficient officer of the company, had, in person, managed the engine, and the plaintiff had been injured by his carelessness, I would most respectfully ask, how could it be pretended that the company was not liable ?
I admit here, once and for all, that the plaintiff, like any other servant, took, as consequence of his contract, the usual and ordinary risks of his employment. What is meant by this ? No more than that he could not claim for an injury, against which the ordinary prudence of his employers, their agents or himself, could provide. Whenever negligence is made out as the cause of injury, it does not result from the ordinary risks of employment.
How far are the defendants liable for the acts of the engineer ? In the language used in Bacon’s Abridgment, Tit. Master and Servant, letter R , “it is highly reasonable that they should answer for such substitute, at least civililer; and that his acts, being pursuant to the authority given him, should be deemed the acts of the master.” Now, to this authority, it will not do to say the defendants did not authorize the engineer *to run his engine so carelessly as to injure the plaintiff. They put him in command of it, and authorized him with it to run the road. If, in the doing of this act, which is according to their authority, he acts negligently, then they are liable for the consequences, for they result from the doing of their business, by one then employed by them. The cases of Drayton ads. Moore, and Parker & Co. vs. Gordon, (Dudley’s Rep. 268,) and of O'Connell vs. Strong, (Ib. 265,) are full to this point. In ordinary cases, this would not be questioned. But it is supposed that this case is not governed by the ordinary rules applicable to cases of liability, arising out of the relation of master and servant. I am at a loss to conceive any just reason for this motion. The law, it seems to me, is to be regarded as a general science, applicable to every case coming within the letter or the reason of the rule. Where it is within neither, it becomes an exception to it. It is only necessary to state this case, to see that it is within both the letter and reason of the rule; for the defendants employ the plaintiff to act under the command of another of their servants. In such a case, the servant in command, is in the place of the employers. When they hire another to engage in a service, where neither his own care nor prudence can shield him from injury, which may arise from the act of another of their agents, having the control of him, the question of their liability depends upon the care used by such superior agent. The ordinary rule in cases of hiring goods, is, that the hirer should use that degree of care which a prudent man would take of his own goods. If this degree of care is shown, then the hirer is not liable for any injury which may result to the goods hired. This rule, it seems to me, must, necessarily, be that which applies to this case. Is more favor to be bestowed on a man’s goods than on his person ? It would be strange that this should be so. It may be tested, however, by inquiring if the plaintiff, instead of himself, had hired his negro man to the defendants as second fireman, and he had lost his leg by the care-
In the cases of Drayton ads. Moore, and Parker & Co. vs. Gordon, (Dud. Rep. 272,) it was said, “ when a master employs slaves in any public employment or trust, such as tradesmen, ferrymen, wagoners, patroons of boats, or masters of vessels in the coasting or river navigation, he undertakes, not only for their skill, and faithfulness to all who may employ them, but also, for their general skill and faithfulness to the 'whole community.” This rule stated as to slaves, applies more forcibly to hired servants, and my brother Johnson, who then resisted the rule as to slaves, admitted it in its fullest extent as to hired servants. Taking this as settled law, how stood the plaintiff in his contract with the defendants in relation to the engineer ? Had he not the right, according to law% to regard the defendants as contracting both for skilfulness and faithfulness? It seems to me, there can be no doubt about it. Well, this being so, if the engineer was negligent, the defendants’ undertaking for his faithfulness was broken, and they are most clearly liable.
It is, however, urged (and that is, as I understand, the ground on which the Court of Errors decides the case) that this case is one of novel impression, and not to be decided by the ordinary rules of the law of bailment. Conveyance by locomotives on railways is supposed to be more analogous to shipping than any thing else; and hence, unless a sailor could recover for an injury arising from the neglect of a master, it is supposed that a fireman cannot, for an injury arising from the neglect of the engineer. Before I discuss the case in this new aspect, I deny that any mode of conveyance on land is to be put on a footing with the navigation of the ocean in ships. That is governed by the principles of law coeval with society, and in many respects common to every civilized nation of the earth. Conveyances on land are also regulated by a very ancient and well-settled law wholly distinct from the other. It will, however, be sufficient to show by one plain view, that the law applicable to mariners cannot affect this case. Unless a vessel earns freight, the mariner is entitled to no wages. Suppose a locomotive running from Charleston to Aiken should burn up the entire train, and thus earn no *would not all the hands hired by the defendants to manage her, be entitled to their wages ? There could be no more doubt that they would, than that a man hired to drive my wagon to Charleston, who, by some unforeseen accident should lose his load, would still be entitled to his wages. This shows that in the very beginning there is such a difference in the law of a ship and that of a locomotive, that it is impossible the law of the former can decide the right of a servant employed in the latter, to recover for an injury arising from the neglect of the engineer.
But if it were otherwise, and this case depended upon maritime law, still I am inclined to think the plaintiff ought to recover. Ho exactly analogous case can be found. In Phillips on Ins. 463, Judge Story is
But, it is said, it would be impolitic to make the defendants liable for any injury accruing to a fireman, from the neglect of the engineer. This would be worth inquiring into with great care in the Legislature; but, in a Court, I think we have nothing to do with the policy of a case; the law of it is our guide. But if we are to look to the policy, then I should avgue that the more liability imposed on the railroad company, the more care and prudence would be thereby elicited. This result is what the community desires. For it secures life and property, committed to their care.
I think the motion ought to be dismissed.
Dissenting Opinion
also dissenting. It may not diminish the force of the observations made by Mr. Justice O’Neall, if I *state very briefly the reasons which induce me to concur in his dissent.
It is admitted that the duties and liabilities between masters and hired servants, result only from the nature and terms of the contract which forms the relation; and that neither party is allowed to extend or abridge the contract. That the master cannot exact other services than those stipulated for; nor, by any indirection, subject the servant to any other than the ordinary perils incident to the employment; and that if he does, by any agency whatever, or by any means, whether of design or negligence, accumulate upon the servant, while in the performance of his duty, any dangers beyond these inherent in the service itself, they fall upon the latter, not as a servant, (for his contract does not bind him to endure them,) but as a man, and the law entitles him to redress.
It is also admitted that these principles are not confined to cases where one servant only is employed, but prevail when a plurality are at the same time engaged by the same master. Their application, however, in cases of the latter description, depends upon the terms of the contract. If several jointly contract to perform a specified duty, the master is not liable to either of them for injuries resulting from the faithlessness or negligence of his coadjutor; all of them being, substantially, agents for each other, to perform their joint undertaking. But when their engagements are several, each undertaking for himself, to perform distinct offices, in a matter susceptible of a division of labor, each stands to the master in the same relation, and is entitled to the same rights, as if he was the only servant employed. The master is responsible to him, as he would be to a stranger, for the misconduct of the others, who are exclusively his, the master’s, agents.
Now, this is admitted to be the general law upon the subject; and it is applicable to the servants of a railroad company, as well as to those
No instance of master and servant has been pointed out where these principles do not obtain, except the case of a ship’s crew; but that stands clearly upon special grounds of usage.
If the servants employed about a railroad, are excepted out of the general rides relating to agency, the exception, with the '-•'grounds and reasons of it, must be shown, otherwise the employers will be as liable to any one engaged in their service, for injuries inflicted on him by other agents, in the course of their employment, as a planter would be to a hired hand for maltreatment by his overseer.
I presume no one will contend that the rule applicable to service in a railroad company, is, that the company is not liable to any agent, for any injury, provided the company can only show that another of its agents has inflicted it. Would it do to say, for example — and upon what principle could it be said — that a superintendent of the hands engaged in repairing the road, may, with impunity to the company, abuse his authority, to the injury of their health ? Or, if the cars were to be run at night, and, through the neglect of hands set apart to watch the road, and remove obstructions, the whole train were lost, and any officer or hand on board were crippled, certainly no one moans to assert that none of these could claim compensation from the company, but must look exclusively to the irresponsible agents (perhaps slaves,) hired by the company, through whom the injury accrued ? And yet, how is the rule to be laid down — -I wish to hear the rule stated — which would include that case and exclude this. The fidelity of the hands detailed to superintend the road, in the case I have supposed, would be as essential to the common enterprise of running the cars, as the fidelity of the hands on board to their respective duties. If the idea is indulged, that there is, in any branch of this enterprise, an implied undertaking among the servants to do the work jointly, and to waive the neglect of each other, what will constitute such an understanding ? Where are its limits ? Does it arise from the intimate connection of the hands ? Then, I wish to be informed what degree of intimacy, what strength of association, is demanded, to raise the implication ? Where is the line ?
I give no opinion upon the evidence. I take the verdict for the facts ; and, according to the finding of the jury, the plaintiff faithfully performed his particular duty, and, while performing it, was injured by the faithlessness or negligence with which the company, acting in the person of another agent, executed a duty incumbent upon them. Ought the plaintiff’s remedy to be doubtful ?
*The elements of the contract between him and the defendants, are these : on their part, so far as they were to contribute to the propelling of the cars, that they would carry him safely ; and, on his part, that on the trip he would perform certain offices. With respect to the last, he was their servant; with regard to the first, he was their passenger; and as their passenger, they have crippled him. The distinction is plain, and the propriety of applying it would be as plain, if instead of being stationed where he was, he had only been a clerk, hired by the company to travel up and down in the cars, and take a minute of their operations. Yet, on principle, no discrimination can be drawn against