| Conn. | Sep 12, 1892
A considerable number of reasons of appeal were filed in this case, but the questions really made are few, and do not require a recital of the reasons in detail.
It will tend to simplify matters if we first consider the question whether the relation between the plaintiff and Barber, as disclosed by the record, was that of fellow-servants. The plaintiff claims that it was not, and bases one ground of appeal on that claim.
Barber, as the finding states, was foreman of a gang of five or six laborers, of whom the plaintiff was one. They were engaged in drilling and blasting to protect the safety of the defendant's railroad track. In the absence of the road-master it was the duty of the foreman to direct the work of the other laborers, and to keep their time, but he had no power to hire or discharge them. At the time of the accident the road-master was absent and Barber was directing the work.
There is nothing, of course, in the mere fact that Barber was foreman, to prevent the relation of fellow-servants from subsisting between him and the plaintiff. Those have frequently been held to be fellow-servants, within the meaning of the law affecting the responsibility of masters for their negligence, who have the same employer, are engaged in the accomplishment of the same general object, are acting in one common service, and derive their compensation from the same source.
This court said very recently in McElligott
v. Randolph,
In this case the work of preparing the dynamite, caring for it after it was prepared, distributing it, directing when and how it should be exploded — in short, the sort of work which the finding states that Barber was doing at and about the time of the accident, is clearly not the work or duty of the master, but some of the details necessarily resting upon the intelligence and care of the servants to whom that duty is entrusted, the risk of which the plaintiff had assumed.
Upon the facts found we cannot hold that the court erred in deciding that Barber and the plaintiff were, for the purposes of this case, fellow-servants.
The perils arising from the carelessness and negligence of fellow-servants are among the risks which one who engages in the employment of another for the performance of specified services for compensation takes upon himself.
It is the master's duty to exercise reasonable care to provide for his servants a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers. The trial court finds that "the injury to the plaintiff was not caused by any negligence of the defendant," and "that both Barber and Jack Sullivan were competent persons to properly perform the work for which they were engaged and for which they were employed, and the defendant was guilty of no negligence in having employed them." The plaintiff complains of this, and asks us to find, as matter of law upon the facts contained in the finding, that it is error.
When it is claimed that a master has been guilty of negligence in selecting or retaining an incompetent servant, the burden is on the plaintiff to prove it. The fact that the court finds that both Jack Sullivan and Barber were negligent in respect to this particular accident, in not having examined *216 either the fuse or the cartridge, does not necessarily show that they were not competent persons to properly perform the work for which they were employed, nor, a fortiori, that the defendant was guilty of negligence in having employed them. Baulec v. N. York Harlem R. R.Co., 59 N. York, 356. It nowhere appears that any other evidence tending to show incompetency was offered. We are in no position, therefore, upon the facts, to contradict the finding of the court in respect to the competency of the plaintiff's fellow-servants, and the defendant's freedom from negligence in employing them.
In respect to the point that the court erred in finding, upon the facts stated, "that said explosion and injury were not caused by any negligence of the defendant," the plaintiff insists that the finding shows that the defendant did not furnish suitable tools and appliances, because it shows "that the cap was but slightly fastened to the end of the fuse by pressing the sides of the cap upon the fuse with a knife, and nowhere finds that any tool other than a knife, adapted to securely fasten the cap to the fuse, was furnished by the defendant."
It may be said, in reply to this, that there is no allegation in the complaint that the defendant was negligent in not furnishing proper tools and appliances; that no such claim was made at the trial; that it nowhere appears that a knife was not a proper and usual tool for the purpose for which it was used, or that any other tool could have been procured or is made which is better adapted for the purpose; or that, if any other and more fit tool exists, it was not furnished by the defendant. The finding is silent on these points. It only incidentally appears that the cap was but slightly fastened by pressing it with a knife. Whether there would have been any difficulty in pressing it securely with a knife is not stated. In short nothing appears of record to warrant us in contradicting the finding of the court below, that the explosion and injury were not caused by any negligence of the defendant.
Upon the plaintiff's own contention that we are at liberty *217 to review this conclusion, we find no ground, in the facts as detailed, upon which to base a disagreement with the court below. There is, however, nothing in the case to authorize us to treat the question of the defendant's negligence, as presented to us, as a question of law.
The plaintiff himself insists that the question of contributory negligence, if it arose in the case, was disposed of at the trial as a question of fact and cannot be reviewed by this court. He makes the same claim in respect to the finding of the negligence of Jack Sullivan and Barber. But he claims that the finding that the defendant was not negligent is not conclusive. We cannot see that the court adopted any erroneous views as to the duty which the law imposed upon the defendant respecting either the employment of competent fellow-servants or the care to be exercised to provide them with reasonably safe appliances and instrumentalities for their work, having regard to the character of the work and the instrumentalities with which it was to be accomplished. There is nothing to indicate that it disregarded any claim which the plaintiff made in that behalf.
It will be apparent upon a careful examination of it, that there is nothing in the record which would justify us in holding that the trial court erred, as matter of law, in deciding that the defendant was free from negligence, or in impeaching the soundness of its disposition of the facts upon which such ultimate decision rested.
The standard fixed by law is, as already stated, that the master shall exercise reasonable care to employ competent servants, and provide reasonably safe appliances for the work to be done. Unless he observes this standard he is negligent. In deciding whether the standard has been observed, the competency of the co-servants and the safety of the appliances are questions to be decided by the trial court upon the evidence offered upon those points. If in this case the plaintiff offered evidence attacking the competency of his fellow-servants or the suitableness of the appliances furnished them, it is not before us, and should not be.
To conclude the matter, there is nothing in the case to *218 warrant us in holding that the court did not correctly understand and apply the law; that it did not receive and consider all the evidence that was offered; that it imposed any duty upon the parties which the law did not impose or absolved them from any duty which the law required of there under the circumstances; or that in any other respect it violated any rule or principle of law.
There is no error in the judgment appealed from.
In this opinion the other judges concurred.