76 P. 219 | Utah | 1904
Lead Opinion
after stating the facts as above, delivered the opinion of the court.
We are of the opinion that the foreman and plaintiff in this case, were fellow-servants, and that under the facts and circumstances disclosed by the record, and
The judgment must be reversed, with costs, and the cause remanded. It is so ordered.
Concurrence Opinion
(concurring).
There is an irreconcilable conflict as to who are fellow-servants in the decisions of both the Federal and various State courts upon the subject. In some of them, as stated in Beach on Contributory Negligence, sec. 324, it is held “that all who work for a. common master, or who are subject to a common control, or derive their compensation from a common source and are engaged in the same general employment, working to accomplish the same general end, though it may be in different departments or grades of it, are fellow-servants. ’ ’ In numerous .other decisions in both- the Federal Supreme Court and in several of the State Courts “it is held that where the negligent servant is, in his grade of employment, superior to the injured servant, or where one servant is placed by the employer in a position of subordination and subject to the orders and control of another in such a way and to such an extent that the servant so placed in control may reasonably be regarded as representing the master, as his alter ego or vice principal, when such inferior servant, without fault and while in discharge .of his duty, is injured by the negligence of the superior servant, the master is liable in damages for the injury. ’ ’ In support of each of the foregoing sections about an equal number of cases are cited in the notes. There are a number of decisions which go still further, and hold, as in Armstrong v. Railway Co., 8 Utah 420, 423, 32 Pac. 693, 694, and Daniels v. U. P. Ry. Co., 6 Utah 357, 23 Pac. 762, that the term “fellow-servants” does not “include those not so associated in their employ
Concurrence Opinion
(concurring).
As we are governed in this State by the law. as it is defined and declared by the Supreme Court of Idaho (the law of the place where the’ accident occurred), I concur in the judgment of reversal.