55 Pa. 460 | Pa. | 1867
The opinion of'the court was delivered, October 31st 1867, by
— It seems to be now perfectly well settled in England, and mostly in this country, that a servant who is injured by the negligence or misconduct of a fellow-servant can maintain no action against thé master for such injury. But it seems to be conceded that if there be any fault in the selection of the other servants, or in continuing them in their places, after they have proved incompetent, perhaps, or in the employing unsafe machinery, the master will be answerable for all injury to his servants in consequence. The law thus clearly stated by Judge Bedfield in his Law of Bailways, vol. 1, p. 521, is the rule in Pennsylvania and governs the present case. The deceased was killed (taking the evidence in its strongest light) by the negligence of his fellow-employee, and the only bond between them was, that there were servants of one common employer. The company, therefore, was not liable for the death of their employee. (See, also, Burges v. Wickham, in note to Readhead v. Midland Railway, 36 L. J. Q. B. 195.) Nor was there- any proof that Wilber (the servant alleged to be in fault) was either unskilful or negligent. “ On the contrary,” says Judge Pearson, “ the only evidence in the case shows that he was reputed and known as both careful and vigilant.”
The charge of the learned judge was perfectly correct, and we see nothing in the seven assignments of error requiring any further remark.
Judgment affirmed.
