111 F. 330 | 8th Cir. | 1901
Lead Opinion
after stating the case as above, delivered the opinion of the court.
The evidence discloses no authority in tlie shift boss to hire or to discharge men for the defendant. Elis power was limited to supervising the work of the employes intrusted to his care, and to directing them when, where, and how to do their work. There was no evidence of any negligence in the selection or employment of the workman whose carelessness caused the injury. Was notice to the shift boss of the incompetence of this servant notice to his master? Counsel for the plaintiff contend that this question was properly answered in the affirmative by the court below, and cite in support of their positiou the following authorities: Railroad Co. v. McDaniels, 107 U. S. 454, 459, 2 Sup. Ct. 932, 27 L. Ed. 605; Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772: Railroad Co. v. Henthorne, 73 Fed. 634, 638, 19 C. C. A. 623, 627, 43 U. S. App. 113, 122; Laning v. Railroad Co., 49 N. Y. 521, 534, 10 Am. Rep. 417; Railway Co. v. Collarn, 73 Ind. 261, 272, 38 Am. Rep. 134; Coppins v. Railroad Co., 122 N. Y. 557, 565, 25 N. E. 915, 19 Am. St. Rep. 523; Railroad Co. v. Nuck
The nature and the limits of the liability of the master for the incompetence of his servants is stated by- Mr. Justice Brewer, in the latest decision of the supreme court upon that question which has been called to our attention, in these words:
“It may be asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken In providing such safe placo and machinery, and so the former is as fully discharged when reasonable precautions have been taken to place fit and competent persons in charge.” Railroad Co. v. Baugh, 149 U. S. 387, 13 Sup. Ct. 921, 37 L. Ed. 781.
In Reiser v. Pennsylvania Co. (Pa.) 25 Atl. 175, 34 Am. St. Rep. 620, the chief train dispatcher of the railroad company was aware of the incompetence of one Crossman, a local operator working under his supervision and direction, but he had no power to hire or to discharge employés for the company; and the claim was that notice to him was notice to the corporation. The supreme court of Pennsylvania overruled this contention, and said:
“This might be so if he was clothed with the power of employing and discharging such servants. But he was not charged by the company with its duty in reference to the selection and retention of its employes.”
In Smith v. Railroad Co., 52 S. W. 378, 383, 48 L. R. A. 368,— a case which was decided in 1899 by the supreme court of Missouri, —the head master of a roundhouse of a railway company was charged with notice of the habitual negligence of an engine wiper who
The rule announced and illustrated in these decisions furnishes the only line of demarkation between the duty and liability of the master and the duty and liability of the servants in such situations-It is the master’s duty to use reasonable care to provide competent servants. Servants assume the risk, of the negligence of their co-workmen. Their interest prompts them and their duty calls them to report the known incompetence of their fellows. This interest and duty rest alike upon the superior servants—those who supervise and direct the work—and their subordinates, for they are all alike fellow servants. Strike down the rule which charges the master with and limits his knowledge to the knowledge of those whom he has empowered to discharge his duty of employing and discharging, and no guide or measure of the respective liabilities of master and servant remains, and they are left to the varying opinions of judges and juries, without compass .to direct or principle to control them. Nor is this rule inconsistent with the general principles of the law of negligence. On the other hand, it is a necessary corollary of the established' rules of that branch of the law. Oxie who enters the service of another assumes all the ordinary risks and dangers of that service. One of these risks is the danger of injury from the-negligence of his fellow servants. His association with his co-workmen is necessarily closer, his knowledge of their character, habits,, and competence more intimate and more exact, than that of’ the master can be. As he has a better knowledge of their character and of their negligence, he is better able to protect himself against it than his master can be, and for this reason the law charges him with its-risk. All who enter the employment of a common master to accomplish . a common undertaking are prima facie fellow servants, and each assumes the risk of the other’s negligence. The duties of co-workmen engaged in a common undertaking are necessarily diverse,, and their grades of service different. On some is imposed the duty of sixperintending the work, and directing their associates when, where, and, how to do it, while it falls to the lot of others to obey the directions of their superiors and to perform the labor. But this difference of duties and of grades of service neither abrogates nor affects the relation of fellow servants, ..The foreman, the boss, or the superintexid-ent of a gang of men is a fellow servant of those under him’to the same extent that they are co-workmen of each other. Each one of the subordinates assumes the. risk of the, negligence of.
Some of the rules which we have thus briefly restated have been the subjects of volumes of debates and conflicting decisions, but they have at last become established beyond doubt or cavil by the repeated decisions of the highest court in the laud. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009; Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269, 40 L. Ed. 418; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994; Railroad Co. v. Charless, 162 U. S. 359, 16 Sup. Ct. 848, 40 L. Ed. 999; Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181 ; City of Minneapolis v. Lundin, 58 Fed. 525, 527, 7 C. C. A. 344, 346, 19 U. S. App. 245, 249; Coal Co. v. Johnson, 56 Fed. 810, 6 C. C. A. 148, 12 U. S. App. 490; Railway Co. v. Waters, 70 Fed. 28, 16 C. C. A. 609, 36 U. S. App. 31; Balch v. Haas, 73 Fed. 974, 979, 20 C. C. A. 151, 156, 36 U. S. App. 693, 700; Bridge Co. v. Olsen (C. C. A.) 108 Fed. 335, 337; Railway Co. v. Elliott, 102 Fed. 96, 111, 42 C. C. A. 188; Millsaps v. Railway Co., 69 Miss. 423, 13 South. 837; Railroad Co. v. Hoover, 79 Md. 253, 29 Atl. 994, 25 L. R. A. 710, 47 Am. St. Rep. 392; Blessing v. Railway Co., 77 Mo. 410; 2 Bailey, Pers. Inj. §§ 2061, 2190; Railroad Co. v. Poirier, 167 U. S. 48, 17 Sup. Ct. 741, 42 L. Ed. 72; Oakes v. Mase, 165 U. S. 363, 17 Sup. Ct. 345, 41 L. Ed. 746; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003; Farwell v. Railroad Co., 4 Metc. (Mass.) 49, 38 Am. Dec. 339; Holden v. Railroad Co., 129 Mass. 268; Clifford v. Railroad, 141 Mass. 564, 6 N. E. 751; Sherman v. Railroad Co., 17 N. Y. 153; Besel v. Railroad Co., 70 N. Y. 173; De Forest v. Jewett, 88 N. Y. 264; Weger v. Railroad Co., 55 Pa. 460; Coal Co. v. Jones, 86 Pa. 432.
It is an indisputable, deduction from these rules that a superior servant charged with the duty of supervising the men under him and their work, but unauthorized to hire or to discharge them, is performing the duty of a fellow servant, and not that of-a master. His acts, liis knowledge, and his negligence are those of the servant, and not of the employer. If through his culpable carelessness the incompetence of a servant is- not reported to the superintendent, who has
Much has been said in argument about the duty of the master to inspect his workmen, and to keep informed respecting their competence after they have been employed; and the assumption is indulged that every one who is empowered to supervise their work is authorized to make this inspection, and to receive notice of their competence vhHx would charge the employer. The assumption is unwarranted, .ok! tin; rpgument loses sight of the fundamental principles of the law of n-wligcuThe liability of the master here rests upon and is measured by ¡1» . ■ V- of the law of agency and of negligence. The agent or officei •viRm. che employer appoints to select, discharge, or suspend the servants in his service, and that agent alone, may charge his master by his acts or by his knowledge of their character. Those ^whom he employs for other purposes have no authority to select or discharge their fellows, and hence their knowledge and their negligence regarding the competence -of their co-workmen in no way charge their employer. '
The presumption of law always is that the master has discharged his duty, and has employed fit and competent servants. That presumption, unlike the presumption that he has furnished reasonably safe machinery, increases in strength with the lapse of time, because workmen grow more skillful and competent,' wifile machinery deteriorates by use. The duty of the master ic discharged when he has taken reasonable precautions to place fit t.nd competent servants in charge of the work. One who would, charge the master with negligence here must therefore prove h’ot only that the servant was incompetent, but that the master knew, or by the exercise of ordinary diligence 'would have known, Hr his unfitness. The servant, not the master, assumes the risk of the negligence of those who work with him. He is in constant and close association with his co-workmen, and it is his duty to report to the agent whom the master has appointed to hire and discharge them any incompetence of which he learns. The employe who knows, or by the exercise of reasonable diligence would bay* known, of the recklessness and incompetence of his fellow servad,, and who still neglects to report his shortcomings to the proper superior, assumes the risk of that negligence and incompetence. Railway Co. v. Peavey, 34 Kan. 472, 479, 8 Pac. 780; Brick Co. v. Kenyon, 57 Ill. App. 640, 646; Mining Co. v. McIver, 5 Colo. App. 267, 280, 38 Pac. 596; McCharles v. Smelting Co., 10 Utah, 470, 37 Pac. 733; Davis v. Railroad Co., 20 Mich. 105, 4 Am. Rep. 364; Railroad Co. v. Geary, 110 Ill. 383. These principles of law are indisputable. In view of them it is difficult to perceive how notice of the habitual recklessness of a fellow servant can be successfully
The judgment below is reversed, and the case is remanded to the court below for another trial.
Concurrence Opinion
We concur in the reversal of the judgment in this case on the ground stated in the foregoing opinion,—that the instruction given by the trial court that notice to the shift boss of Murcrey’s incompetency or careless habits was notice to the defendant was an erroneous instruction, because there is no evidence in the record tending to show or warranting the inference that the shift boss either had power to hire or discharge the incompetent employe or any other employés. There are some other general propositions of law stated in the opinion concerning which we would not be understood as expressing any opinion.