Tyson v. South & North Alabama Railroad, 61 Ala. 554

Tyson v. South & North Alabama Railroad

61 Ala. 554 | Ala. | 1878

STONE, J.

In the case of The Mobile and Montgomery Railroad Co. v. Smith, 59 Ala. 245, we decided that Jordan, the superintendent of the road, and O’Brien, the supervisor of that part of the road, on which the injury complained of was done, were fellow-servants of Smith, the brakeman, who was plaintiff in that suit. In that case we said: “ It is proved that Jordan, the superintendent, O’Brien, the road supervisor, Price, a section master to whom blame is ascribed, and Mitchell, the engineer of the train, were all of them competent, prudent, and experienced in the several duties to which they were respectively appointed. These were all the persons in any way chargeable with the mishap, who were concerned in the service.” The fault which led to the injury complained of, was chargeable to one or more of the above named employees or servants of the railroad corporation. But the fault was committed in that case by one or more of the servants aforesaid, while they and Smith were acting in the common business of the same master, the railroad corporation. We held that the railroad was not responsible in that case for injury done the plaintiff, by the negli*557gent performance of duty by a fellow-servant. That case was distinguished from Walker v. Bolling, 22 Ala. 294; and the principle announced in the older case was not intended to be impaired. In the later case we said : “ In Walker v. Bolling, this court held that where there is a general manager or superintendent, who is invested by the common employer with the duty and authority of employing and dismissing the inferior agents and servants who are under him, the master is responsible for acts of negligence on the part of the superintendent in failing to exercise due care and diligence in the employment of competent agents, or in not dismissing those who are proved to be incompetent.” The distinction may appear to be a narrow one, but we think it is founded in solid reason. In the one case the servant simply performs the labor assigned him. He has no authority or power to sublet, or delegate the service to another. If his principal, the railroad corporation, has selected him with care ; if he possess the requisite skill, qualifications and good character, then the corporation, which speaks and acts through its officials, has done its duty, and will not be held to account to another servant or employe for any injury that may have resulted from the fault or negligence of such accredited first mentioned employe. Such is the weight of authority, and such are our decisions. We have no desire to overturn them. — M. & O. R. R. Co. v. Thomas, 42 Ala. 672. In the case cited, our predecessors used the following language : “There are perils incident to the servant’s employment, against which caution and prudence can not perfectly guard. Those perils and risks the servant must be presumed to know as well as the master, and when he contracts, he must be understood to assume them, and stipulate for a compensation apportioned thereto. It is in this that the relation of a railroad corporation to passengers differs from its relation to servants. The principle has been so often declared, both in England and in this country, that it has ceased to be disputable.” See, also, the authorities collected and collated in the able opinion in that case.

But the question we have been discussing is not the question in this case. The bill of exceptions states “that on the night when the injury occurred, the regular night engineer was excused for sickness, and the regular day engineer complained of being tired, and thereupon the yard master of the defendant, who was invested with authority to remove and appoint engineers at will, and who was proved to be a competent and skillful man for his position, put one Love*558lace in charge of the engine, without the consent or knowledge of the plaintiff; and while said Lovelace was, without plaintiff’s knowledge, acting as engineer, and by reason of the ignorance or negligence before stated, plaintiff was hurt.” There was testimony tending to show that Lovelace was not a competent engineer. It appears then that part of the administrative functions of the corporation were confided to sub-agents and employes. Such practice may be, and probably is, necessary, in the control and government of so large a corporation as a railroad usually is. But, the performance of such delegated power by the sub-agent or employes is the act of the corporation, and the corporation is responsible for its faithful and prudent performance, to the same extent as if the service were performed by the highest officer of the corporation. The selection and removal, at will, of engineers in control of locomotives, is a high and responsible function, and the consequences of errors, or misplaced confidence therein, are too fearful to be lightly passed over. The railroad corporation must not only have a competent and skillful man for this position, but he must prove his competence and skill by selecting competent and skillful persons to execute his orders. Failing to do. so, the railroad corporation he represents is accountable for the injury resulting from such failure. This, we understand, is the result of the principle declared in Walker v. Bolling, supra, which was reaffirmed in Cook v. Parham 24 Ala. 21. Speaking on this question, Chief-Justice Walker, in M. & O. R. R. Co. v. Thomas, said: “ The master is answerable that the servants shall be persons of ordinary skill and care. This qualification has been twice announced in this State. The precise shape of its statement is, that it is the master’s duty to use due care in procuring competent servants or officers, and he is responsible for a failure to discharge that duty. With this qualificatiorl the rule above stated, which prevails in England, must be regarded as established in this State.” The rule referred to is, that the master is not responsible to one servant for injury caused by the fault or negligence of another. And so we hold that while the railroad company is not responsible to Tyson for injuries which he sustained by the fault or neglect of Lovelace, provided the latter was a competent and skillful engineer, yet, if he was not competent and skillful, then the corporation is responsible to Tyson for any injury that resulted from such want of competence and skill.

*559The rulings of the Circuit Court were not in harmony with the views above expressed.

Reversed and remanded.