59 A. 502 | Conn. | 1904
The plaintiff, a workman in the service of the defendant, was engaged in loading a car, when other workmen of the defendant negligently caused the car to run against him, knocking him down and inflicting the injuries of which he complains. Two of the questions upon this appeal are whether the plaintiff was a fellow-servant of the men whose negligence caused the injury, within the meaning of the fellow-servant rule; and whether the negligence of the other workmen was the negligence of the defendant.
The facts found bearing upon these questions are in substance the following: At the time of the injury the plaintiff was at work at the north end of an ash car which stood upon the transfer or turntable. From this table the car could be moved north or south by means of the stationary engine on the table. This engine and table were operated by Grimes, an employee of the defendant. In running the ash car off the table it was customary to attach a cable to the car, and, as the car moved, to follow and detach the cable; and in this work Grimes required assistance. Just before the injury to the plaintiff, Grimes told his assistant, Maloney, a workman of the defendant, to attach a cable to the north end of the car for the purpose of moving it south. Grimes and Maloney saw the plaintiff at work and told him they were about to move the car, but did not tell him in which direction it was to be moved. The plaintiff was an ignorant man, and he understood from the warning that the car was to be moved to the north. He then went to work at the south end of the *353 car. Neither Grimes nor Maloney knew of this, and Grimes supposed that the plaintiff had gone to the roundhouse. After telling the plaintiff that the car was to be moved, Grimes went to the engine-house on the table, and in about six minutes got up steam and started his engine, and moved the car some seven or eight feet to the south, thereby causing the injury to the plaintiff. Grimes and Maloney were reasonably fit and competent workmen, and the engine and car could be readily operated by them with reasonable safety. The transfer table and its appurtenances were reasonably safe appliances when operated with proper warnings.
From his position when he started the engine, if he had looked, Grimes could have seen the plaintiff at the south end of the car, and "could have known of the peril of the plaintiff should the car be moved south. . . . It was the duty of Grimes, under his instructions, . . . to be careful in moving the car off the table to see that everything was all right, and to have seen that no obstructions were on the track ahead of the car, and ordinary care required him to take such precautions." Grimes took no such precautions, and "his failure to do so was a breach of his instructions and a failure to use ordinary precautions to avoid accident." It was the duty of Maloney "to have seen that the track was clear. This he did not do, and did not know it was his duty to do." The plaintiff's duties were to remove ashes, cinders and waste material from the engine-house, and to clean up the office of the master-mechanic. It was his daily custom to carry said ashes and other material in a wheelbarrow to a car used for removing ashes. The plaintiff was under the general control of the defendant's master-mechanic, and under the immediate direction of the general foreman of the repair shops and yard. Grimes was a subforeman under the defendant's master-mechanic, and the general foreman of the repair shops and yard. His duties consisted mainly in operating the transfer table. "The plaintiff was not subject to Grimes' control or orders, nor associated with him in any of his work. . . . The defendant, through its master-mechanic and the foreman of the repair shops, had given Grimes proper *354 and sufficient instructions as to the management of the engine and the moving of the cars on and off the transfer table."
The court below has found that if Grimes, when he started the car, had "looked casually he ought to have seen the plaintiff, and had he looked carefully he could not fail to have seen him"; and further, that "his failure to see was a breach of his instructions, and was a failure to use ordinary precautions to avoid accident, and that failure is negligence and the injury to this plaintiff flowed from it."
Upon the facts thus found the trial court held, (1) that the plaintiff and Grimes and Maloney were not at the time of the accident fellow-servants within the meaning of the fellow-servant rule; and (2) that the duty to warn the plaintiff that the car was to be moved south, and to see that the track was clear before it started, was a duty resting upon the master, and that the failure to perform that duty was the negligence of the master.
These rulings are reviewable in this court. Nolan v. NewYork, N. H. H.R. Co.,
The following are a few of the cases in our State and elsewhere, in which facts like those in the case at bar were expressly, or in effect, held to constitute the relation of fellow-servant between the workmen of a common master. Nolan
v. New York, N. H. H.R. Co.,
Assuming, for the moment, that the duty violated in the case at bar was not a duty of the master, we think the court *356 erred in holding that the plaintiff was not a fellow-servant of Grimes and Maloney.
The next question is, was the master bound to perform the duty toward the plaintiff which his fellow-servants neglected to perform. If it was, then the negligence of the servant was that of the master. McElligott v. Randolph,
In this view of the case the trial court erred in holding the master liable to the plaintiff for the negligent acts which caused the plaintiff's injuries; and for this reason, without noticing any of the other errors assigned, the judgment must be set aside.
There is error, the judgment is set aside, and the cause remanded for an assessment of and judgment for nominal damages.
In this opinion the other judges concurred, except HAMERSLEY, J., who dissented.