Lawler v. Androscoggin Railroad Co.

a series of decisions, beginning with Priestly v. Fowler, 3 M. & W. 1, and ending with Morgan v. Vale of Neath Railway, Law Rep., 1 Q. B. 148, that a servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the negligence of his fellow-servants." This is pretty universally recognized as law in the decisions of the courts of the different States in this country.

Nor is the law held differently when the employee causing the injury is engaged in a different department of the same general service, or exercising a higher grade of authority. In Feltham v. England, Law Rep., 2 Q. B. 33, it was argued that the foreman, by whose negligence the injury occurred, should be deemed as the "alter ego" of the master and not as the fellow-servant of the party injured, but the court held otherwise. "We think," remarks MELLOR, J., "that the foreman or manager was not, in the sense contended for, the representative of the master. The master still retained the control of the establishment, and there was nothing to show that the manager or foreman was other than a fellow-servant of the plaintiff, although he was a servant having greater authority. As was said by WILLES, J., in Gallagher v. Piper, 33 L. J., C. B. 335, a foreman is a servant as much as the other servants whose work he superintends."" This was held to be the law of this State, in Beaulieu v. Portland Co., 48 Me. 295; and in Massachusetts, in Gilshannon v. Stony Brook R. R., 10 Cush. 228 ; in Vermont, in Hurd, adm., v. V. C. R. R. Co., 32 Vt. 473.

6

The master is liable for the consequences of negligence in the selection of his servants. The gist of the action is negligence. It is the duty of the master to select fit and competent servants. Negligence exists when the master fails to do his best to accomplish this. Gilman v. Eastern R. R., 10 Allen, 238; Warner v. Erie R. R., 39 N. Y. 468. Where the servant attempts to hold the master for his negligence in procuring suitable servants, the charge of negligence should be duly alleged in an appropriate count. Harper v. Ind. & St. Louis R. R. Co., 47 Mo. 567; Moss v. Pacific R. R., 49 i. 167.

The master of men in dangerous occupations is bound to provide for their safety, and this obligation extends equally to the providing good and sufficient machinery, and to the procuring skilled and judicious men by whom it is to be controlled. Coombs v. New Bedford Cordage Co., 102 Mass. 572; Fitch v. Allen, 98 id. 573

Lawler v. Androscoggin Railroad Co.

When a master employs a servant on a work of a dangerous character, he is bound to all reasonable precautions for the safety of his workmen. Patterson v. Wallace, 1 Macq. 757. And that they be not exposed to unreasonable risks. Noyes v. Smith, 28 Vt 29. But the negligence of a fellow-servant is regarded as an ordinary risk. Brydon v. Stewart, 2 Macq. 30.

The declaration alleges that a culvert being out of repair and in a dangerous condition, and the plaintiff being employed to repair the same, he being ignorant of its dangerous condition, of which the defendants, or their servants, were well aware, the defendants "by their agent and roadmaster did so carelessly and negligently manage and conduct, supervise and control the making of said repairs upon said culvert," that the plaintiff was grievously injured. The careless and negligent management of the defendants' servants is the only cause of the injury set forth. There is no allegation of negligence on the part of the defendants in selecting incompetent servants, nor is it alleged that the dangerous condition of the culvert was the cause of the injury.

Exceptions overruled.

WALTON, DICKERSON, BARROWS, DANFORTH and VIRGIN, JJ., concurred.

NOTE.-On the question of common employment, or as to when servants are co-servants, see Lalor v. Chicago, Burlington & Quincy R. R. Co. (52 Ill. 401), 4 Am. Rep. 616; Chicago, etc., R. R. Co. v. Murphy (53 Ill. 336), 5 id. 48; Flike v. Boston & Albany R. R. Co. (53 N. Y. 549), 13 Am. Rep. 545; Brothers v. Cartter (52 Mo. 373), 14 Am. Rep. 424; Ford v. Fitchburgh R. R. Co. (110 Mass. 240), 14 Am. Rep. 598.

In Laning v. The New York Central R. R. Co. (49 N. Y. 521) 10 Am. Rep. 417, FOLGER, J., in delivering the opinion of the court, states the general principle :

"A master is not liable to those in his employ for injuries resulting from the negligence, carelessness, or misconduct of a fellow-servant engaged in the same general business. Nor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness, or misconduct has caused the injury, if the service of each, in his particular labor, are directed to the same general end. And though the inferior in grade is subject to the control and directions of the superior whose act or omission has caused the injury, the rule is the same. Nor is it necessary, to exempt the master from liability, that the sufferer and the one who causes the injury should be at the time engaged in the same particular work. If they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purposes, the master is not liable." But CHURCH, C. J., in delivering the opinion of the court, in Flike v. The Bostom & Albany R. R. Co.,

Lawler v. Androscoggin Railroad Co.

supra, observed that there is a "difficulty in applying the rule in actions against corporations, whose whole business can only be transacted by agents who are in some sense co-servants. In 39 N. Y. the court decided that a corporation was liable if negligence causing injury to a subordinate servant could be imputed to the directors, but did not establish any definite rule on the subject. The true rule, I apprehend, is to hold the corporation liable for negligence or want of proper care, in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed. If an agent employs unfit servants, his fault is that of the corporation, because it occurred in the performance of the principal's duty, although only an agent nimself. So in providing machinery or materials, and in the general arrangement and management of the business, he is in the discharge of the duty pertaining to the principal."

In durper v. The Indianapolis, etc., R. R. Co. (47 Mo. 567), 4 Am. Rep. 353, wherein the company was held liable for an injury resulting from their agent's not employing competent servants, WAGNER, J., said: "Corporations can only act through their agents, and when they delegate power to an agent, and he executes that power, it is the act of the company." In the course of a very able opinion delivered at general term of the Supreme Court, Mr. Justice POTTER said, in Brickner v. N. Y. Cent. R. R. Co., 2 Lans. 506 (affirmed by the Court of Appeals, on the authority of Laning v. N. Y. Cent. R. R. Co., supra, see 49 N. Y. 672): "A corporation cannot act personally. It requires some person to superintend structures, to purchase and control the running of cars, to employ and discharge men, and apply all needful appliances. This can only be done by agents. When the directors themselves personally act as such agents they are the representatives of the corporation. They are then the executive head or master. Their acts are the acts of the corporation. The duties above described are the duties of the corporation. When these directors appoint some person other than themselves to superintend and perform all these executive duties for them, then such appointee, equally with themselves, represents the corporation as master in all these respects; and, though in the performance of these executive duties he may be and is a servant of the corporation, he is not in those respects a co-servant, a co-laborer, a co-employee, in the common acceptation of those terms, any more than is a director who exercises the same authority. Though such superintendent may, also, labor like other co-laborers, and may be, in that respect, a co-laborer, and his negligence as such co-laborer, when acting only as a laborer, may be likened to that of any other, yet when, by appointment of the master, he exercises the executive duties of a master-as in the employment of servants, in the selection, for adoption, of the machinery, apparatus, tools, structures, appliances, and means suitable and proper for the use of other subordinate servants-then his acts are executive acts, are the acts of a master, and these corporations are responsible that he shall act with a reasonable degree of care for the safety, security, and life of the other persons in their employ. These executive duties may also be distributed to different heads of different departments, so that each superintendent, within his sphere, may represent the corporation as master. In controlling and directing structures, in employing and dismissing operatives, in selecting machinery and tools, thus he speaks the language of a master. Then he issues their orders to their opera tives. Then he is the mouth-piece and interpreter of their will. Their voice

Lawler v. Androscoggin Railroad Co.

which is silent, is spoken by him. He then only speaks their executive willnot the irresponsible will of a fellow-workman or co-laborer. The corporation can speak and act in no other way. His executive acts are their acts; his negligence is their negligence; his control their control. He has in his executive duty no equal. He is not, while in the performance of these executive duties, only the equal of the common co-laborer or co-servant."

In Ford v. Fitchburg R. R. Co., supra, it was said: "The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who engage in operating it. They are charged with the master's duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require. In one, the master cannot escape the consequence of the agent's negligence if the servant is injured; in the other, he may."

In Brothers v. Cartter, supra, the Supreme Court of Missouri held, that a superintendent who has entire control of any work, with power to employ or discharge workmen, and to provide and remove material, is not a fellow-servant within the meaning of the rule that a master is not liable for injuries to a servant caused by the negligence of a co-servant. In Corcoran v. Holbrook, 59 N. Y. 517 (which will be reported in the next volume of this series of reports), the same doctrine was applied to individuals conducting their business through agents. In that case the plaintiff was an employee in defendants' cotton mill, and was injured by a defective elevator therein. RAPALLO, J., delivering the opinion of the court, used this language: The defendants who operated the mill at the time of the injury gave no personal attention to conducting the mill, but it was managed by a general agent, who had general charge of the mill, machinery and operatives, with power to purchase all supplies, and hire and discharge operatives. It is evident that this general agent was not a mere fellow-servant of the plaintiff, who was a common hand in the mill, but that he was charged with the performance of the duties which the defendants owed to the hands employed in the mill. There was no other person to discharge those duties, and the defendants could not, by absenting themselves from the mill, and refraining from giving any personal attention to its conduct, but committing the entire charge of it to an agent, exonerate themselves from those duties, or from the consequences to perform them. It was the duty of the defendants toward their employees to keep the elevator in a safe condition, and to repair any injury to it which would endanger the lives or limbs of their employees, who were lawfully and properly and in the performance of their functions in the habit of using it. That duty they delegated to their agent. As to acts which a master or principal is bound as such to perform toward his employees, if he delegates the performance of them to an agent, the agent occupies the place of a master, and the latter is deemed present, and liable for the manner in which they are performed. This rule is as applicable to individuals as to corporations."

In Wonder v. The Baltimore & Ohio R. R. Co. (32 Md. 411), 3 Am. Rep. 143, ALVEY, J., said: Who is a fellow-servant within the meaning of the rule has been a question of some diversity of dicision, though the decided weight of authority is to the effect that all who serve the same master, work under the same control, derive authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellow-servants, each taking the riskf the other's VOL. XVI.-63

Lawler v. Androscoggin Railroad Co.

negligence." The same rule was more generally stated in Hard v. Vermont & Canada R. R. Co., 32 Vt. 478: "All who are engaged in accomplishing the ultimate purpose in view—that is, the running of the road — must be regarded as engaged in the same general business within the meaning of the rule." See cases cited in note to Wonder v. The Baltimore & Ohio R. R. Co., 3 Am. Rep. 143.

In Frost v. Union Pacific R. R. Co., 2 Dil. 259. Judges DILLON and DUNDY held that the rule exempting the master had no application where a foreman in the employ of a railroad company, having charge of dangerous machinery, ordered an infant employee under him upon a service hazardous to life or limb, and which was not within the scope of the ordinary duties of the servant thus commanded to perform it. This decision was affirmed by the Supreme Court of the United States, in 17 Wall. 553, expressly on the ground that the injury was received while the boy was doing what he had not contracted to do, and DAVIS, J., delivering the judgment of the court, after stating the rule that a servant was presumed to take upon himself the risks incident to the undertaking, said: "But this presumption cannot arise where the risk is not within the contract of service, and the servant had no reason to believe he would have to encounter it." The Supreme Court of Rhode Island held the same doctrine in Mann v. Oriental Print Works, to appear in 11 R. I. There, a fireman employed to tend an engine was called upon by the engineer to assist in throwing on a belt which worked a pump used to fill the boiler. The fireman being injured by the belt brought an action for the injury received against the corporation which employed both the engineer and himself; the court held, that if the fireman, although employed only for a fireman, was placed under the orders of the engineer, and was by him suddenly called upon to assist in throwing on a belt, out of his own sphere, but within the sphere of duty of the engineer, and was thus subjected to a risk with which he was not acquainted, or to a peculiar and greater risk at that time, and of which he was not informed or cautioned, the defendant would be liable.

And, we believe, it may be safely said that the result of judicial opinion in England is to show that where one servant is injured by another, the question is not, whether the two servants were collaborateurs or fellow-workmen in any technical sense of the term, but whether the damage was within the risk incident to the service undertaken. The negligence of a fellow-workman engaged upon a common work is commonly accounted among the risks undertaken, but is only a subordinate instance. This was the doctrine of Wilson v. Merry, L. R., 1 H. of L. Sc. 326. In that case the plaintiff's son was killed, while in the employ of the defendants as a miner, by an explosion of fire-damp, alleged to have been occasioned by a defective draft in the pit, and it was claimed that the defect in the draft was caused by a scaffold or platform which had been erected in the pit to aid in working the mine. The defendants did not, themselves, take any part in the erection of the platform, nor was any personal fault or negligence of any kind imputed to them. They had a general manager of their mines, and under him was the manager of the pit where the injury happened.- both proved to be competent persons, selected by the defendants with due care and furnished with all the necessary materials and resources for working in the best manner. On the trial the jury was charged that "if they were satisfied on the evidence that the arrangement or system of ventilation in the Houghhead pit at the time of the accident in question had been designed and completed by Neish (the sub-manager), before the deceased was er zageó o work in the pit, and that the defendant had delegated to Neish their whole