49 Miss. 258 | Miss. | 1873
delivered the opinion of the court:
The question chiefly discussed at the bar was, whether a servant could recover from his master, for injuries resulting from the carelessness and negligence of a fellow servant engaged in a common business, and if so, under what circumstances.
At this day, associations of numerous persons and their capital undertake and conduct many of the great enter: prises. Whether united into partnerships or corporations, they require a great number of subordinate agents and employes. The corporation being an ideal personage, conducts its affairs exclusively by agents and servants. To a very large degree, capital has been brought together in incorporated companies for purposes of mining, manufacturing and transportation of freight and passengers; for which individual means would be wholly, inadequate.
It must be assumed that the servant takes upon himself the natural and ordinary perils incident to the business about which he is employed. Where many are co-operating in a common enterprise, the risk and exposure of each, is increased. If several are engaged in the same work, although their duties are distinct, one employed on one part and another on another, yet the united labor of all, being necessary to carry it on to completion ; it is a fair inference that each employe estimates the exposure to danger incident to the continuation of the many, and undertakes the risk. Such perils are indeed ordinary, and necessarily belong to the business. Each for himself takes into the account his exposure, from the want of prudence and caution from every other. There is no trouble in apprehending the fitness and propriety of the principle, where the work to be done is concentrated, and the employes are kept in close contact, as where the eye and ear may command the scene of operations and detect the imminent danger. But where the work is vast and ramified, like a railroad stretching across degrees of latitude, requiring the services of hundreds, and perhaps
The general principle which prevails in England, and in most of the American States, is, that a servant accepting employment for the performance of specified duties takes upon himself the natural and ordinary perils incident to the service, of which, are exposures from negligence of fellow-servants in the same common employment. Priestly v. Fowler (in 1837), 3 Mees. & Welb., 1, is the first and the leading case in England. There the servant was injured by the breaking down of a saw. It was stated by the Chief Baron that there was no precedent for the action, but it must be decided by general principles, with reference to'the «consequences of a decision one way or the other. Whilst the master was bound to provide for the safety of his servant in the course of his employment, negligence must be brought home to him before he is liable. The first case in this country was Murray v. R. R. Co., 1 McMillan, 398 (in 1841), a fireman was seriously hurt by the conceded negligence of the engineer. Lord Abinger’s judgment in Priestly v. Fowler was not brought to the notice of the court, but the same conclusion was reached from similar considerations. The relations of the parties and their relative duties are thus stated : Where there are several servants or agents, “ each stipulates for the performance of his several part.” They
Until 1837, no case had arisen in England, of a servant seeking redress from the master for injuries sustained in the ■course of his employment, because of the negligence or misconduct of a fellow servant. The first instance in this country, of such an action, and that at the suit of the employe of a railroad company, is that of Murray v. R. R. Co. (supra). It may be remarked of this case, that it was thoroughly argued at the bar, as an action new in the instance, depending upon considerations of policy, the consequences to flow from the decision, one way or the other, furnishing the surest test of the judgment that ought to be pronounced. The reasoning of the courtis a comparison of the influences, whether for good or evil, that would ensue, to the employes of the company, the railroad corporation and its business, by sustaining or overruling the suit.
The general doctrine of these cases has been uniformly followed in England and in most of the States. These are some of the more prominent cases: Hutchinson v. T. & N. & B. R. R. Co., 5 Exch., 343; Skip v. Eastern Counties R. R. Co., 24 Eng. L. and Eq., 396; Brown v. Maxwell, 6 Hill (N. Y.), 592 ; Frazier v. P. R. R. Co., 38 Penn. St., 104; Ryan v. C. V. R. R., 23 Penn. Rep., 384 ; R. R. Co. v. Bacon, 6 Porter (Ind.), 205 ; Carle v. B. & P. C. R. R. Co., 43 Maine, 269; Ind. R. R. Co. v. Love, 10 Ind., 554.
In Ohio and Kentucky the courts have modified the rules, so as to fix liability upon the company, where the servant injured was under the control of a superior who was guilty of negligence. Railroad Company v. Stephens, 20 Ohio Rep., 415; Railroad Company v. Keary, 3 Ohio St. Rep., 201; subsequently in Railroad Company v. Barber, 5 Ohio State Rep., 557. These decisions were revised and held not to apply in any instances than those where there existed at the
In the case under consideration, the running off of the train, which precipitated the plaintiff, who was the locomotive engineer, to the ground, and injuring him, was caused by an accumulation of sand on the road-bed, or the spreading of rails by their separation from rotten cross-ties. Just before the accident, there had been a heavy fall of rain; the night was dark and stormy. The place was a deep cut, known to be subject to sand slides and washing from the adjacent banks, from heavy rains. There was evidence tending to show that the casualty may have been caused by accumulation of sand on the track; or that it may have been caused by the rotten cross-ties ; or both may have contributed to it. If the misfortune was attributable to the unsafe condition of the road, from defective and rotten cross-ties, the question arises, What is the responsibility of the company ? The road is under a duty, imposed by its charter, to “ repair” its road; to keep it in condition to subserve the purposes for which it was constructed. It is under a duty also to select competent agents to discharge the several kinds of service committed to them. It must bestow ordinary care and diligence in the repair of the road, and in selecting its agents. Where the law, or thfe nature of a business, devolves a duty upon a party, the fair presumption is that he performs it. If an action is grounded upon negligence or non-performance of it, the plaintiff must show the default. If the injury result from the negligence or misconduct of an agent of a railroad company, liability on the company can be imposed by showing incompetency of the agent, and the want of reasonable care and prudence in his selection, or his continuance in place after notice of his unfitness.
A railroad company, like a natural individual, is responsible for injuries proceeding from its own negligence or mis
Who are “ fellow-servants ” within the rule ? Those who are co-working in the same common enterprise, under the same master and compensated by him. Difference in wages or work do not affect the question, if the general business is the same. The conductor, engineer, brakesman, and firemen are fellow-servants with the same employes on every other train. So they are with the switch tenders, the track repairer, or watcher of trains to give signals, is in a common employment with the engineer, conductor and firemen of a train. Hard v. Vermont and Canada R. R. Co., 32 Rev., 472; Wilson v. Madison, etc., R. R. Co., 18 Ind., 226; Poston v. R. R. Co., 4 Jones (N. C.), 246; Slattery v. R. R. Co., 23 Ind. Rep., 81; Coon v. R. R. Co., 5 N. Y., 492.
It was pressed at the argument, that art. 43, Code 1857, p. 299, furnished a statutory rule, as respects negligence, which withdrew the case from the general rule drawn from the analogies of the common law. That statute is declaratory of the common law, as to railroad companies’ responsibilities to the public. The negligence of any of its agents or servants, whereby injury is inflicted upon or wrong done to a “ stranger,” gives him a cause of action against the company. Without indulging in a philosophical criticism of the language, so as to determine its meaning, we are content to accept the construction put upon it in other States, where a similar statute obtains; that is, that it does not embrace, nor was it so intended, the agents and employes; but they stand upon their common law rights. Sullivan v. M. and Mo. R, R. Co., 11 Iowa, 421; Carle v. B. and C. and R. R. Co., 43 Maine, 269. In the case reported in 11th Iowa, the court held, that where different persons are employed by the same principal in a common enterprise, no action can be brought by them
The theory of law, upon Which the circuit court proceeded, did not accord with what we have ascertained from an examination of the cases, to be the rule in England, and in the great majority of the States. It is a matter of great moment, not to be overlooked by this court, that in view of the ramification of the railroad system, through the States, and the' homogeneity of interest common in all the States, that the rules of law, pertaining to their duties and responsibilities, should be as nearly uniform as possible.
The first instruction assumes that the plaintiffs can recover if the injury may be referred to- the carelessness of other agents and servants of the defendant, employed in a department distinct from that in which the plaintiff was engaged, and over whom he had no control.
If the mischief may be attributed to the section boss and road master charged with the duty of repairing the road-bed, and giving to trains signals of danger, because of a failure to perform them, these servants not being under the plaintiff’s control, then the instruction is, that the recovery may be had. In Coon v. R. R. Co., 1 Seld. Rep., 492. The plaintiff’s business Was to repair the road and inspect the track; he Was injured by a passing train; held that he could not maintain the action, because of the negligence of those running the train. This ease seems to directly negative the proposition contained in the instruction. In Ohio, where the distinction and classification of the employes was first made, as affecting the responsibility of the company, it was held
The third instruction rests upon the same erroneous conception of the law as the first. It declares that the risks taken by the locomotive engineer does not extend to the negligence of employes in other departments. See Bola v. N. Y. Central R. R. Co., 18 N. Y., 432; Hutchinson v. York and New Castle R. R. Co., 5 Exch. Rep., 343; Abram v. Reynolds, 5 Hurt & Norris, 142 ; Wright v. N. Y. Gen. R. R. Co. 18 New York, 565.
The court refused instructions requested by the defendants, the converse of those granted for the plaintiff, such as the twelfth, which was error. The tenth instruction asked by defendant ought to have been given.
The third and fifth charges asked by the defendant, propounded the law correctly, as to the degree of care incumbent on the company in the selection of the servants therein named; and, taken in connection with the tenth prayer for instruction, Which states, “if they become incompetent afterwards, such incompetency must be brought to the knowledge of the defendant, ought not to have been given, and could not have misled the jury. The three requests, taken together, affirm that if the defendant exerted due care in making the appointments, and afterwards, they, or either, became incompetent, and defendant Was aware of it, then if the plaintiff was injured because of their neglect,