Lawler v. Androscoggin Railroad Co.

power, authority and duty in regard to that matter, and also in regard generally to all the underground operations without control or interference on their part, the deceased and Neish did not stand in the relation of fellow-workmen engaged in the same common employment, and the defenders were not on that ground relieved from liability to the pursuer for the consequences of fault, if any there was, on the part of Neish in designing and completing said arrangements or system of ventilation." The House of Lords held this charge to be error. The Lord Chancellor (Lord CAIRNS), after quoting from the judgment of Lord CRAN WORTH in Bartonshill Coal Company v. Reid, 8 Macq. 283, said:

"I would only add to this statement of the law, that I do not think the liability or non-liability of the master to his workmen can depend upon the question whether the author of the accident is not or is, in any technical sense, the fellow-workman or collaborateur of the sufferer. In the majority of cases in which accidents have occurred, the negligence has, no doubt, been the negligence of a fellow-workman; but the case of the fellow-workman appears to me to be an example of the rule and not the rule itself. The rule, as I think, must stand upon higher and broader grounds-as is said by a distinguished jurist: Exempla non restringunt regulam, sed loquntur de casibus crebrioribus. (Donellus de Jure Civ. L. 9, C. 2 n.) The master is not and cannot be liable to his servant, unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial, might be disastrous to his servants, for the master might be incompetent, personally, to perform the work. At all events, a servant may choose for himself between serving a master who does and a master who does not attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this, he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence, this is not the negligence of the master; and if an accident occurs to a workman to-day in consequence of the negligence of another workman, skillful and competent, who was formerly, but is no longer, in the employment of the master, the master is, in my opinion, not liable, although the two workmen cannot technically be described as fellow-workmen. As was said in the case of Tarrant v. Webb, 25 L. J. (N. S.) C. P. 262, negligence cannot exist if the master does his best to employ competent persons; he cannot warrant the competency of his servants."

Lord COLONSAY said: "Now I agree with what has been said as to the terms fellow-workmen and collaborateur. They are not expressions well suited to indicate the relation on which the liability or non-liability of a master depends, especially with reference to the great systems of organization that now exist. And these expressions, if taken in a strict or limited sense, are calculated to mislead. The same may be said of such words as 'foreman' or 'manager.' We must look to the functions the party discharges and his position in the organism of the force employed, and of which he forms a constituent part.' This doctrine was cited and approved in Smith v. Steele, L. R., 10 Q. B. 125. In that case, the defendants were the owners of a vessel lying in dock about to proceed on a voyage, in which the employment of a pilot was compulsory. The

Lawler v. Androscoggin Railroad Co.

testator was a pilot, who was engaged for the voyage. While performing his duty he was killed through the negligence of the defendants' servants. The court held that the pilot did not take upon himself the risk of injury from such a source, and that the defendants were liable.

So in Howell v. Landore and Siemen's Steel Co., L. R., 10 Q. B. 62, the doctrine established in Wilson v. Merry, supra, was conceded to be settled law. In that case a workman in a colliery was killed by an explosion occasioned by the negligence of the manager of the colliery appointed by the owners under the Coal Mines Regulation Act, 1872 (35 & 36 Vict. c. 76), s. 26. Heid. hat the manager and the deceased were fellow-workmen, and that the owners of the colliery were not liable to an action by the representatives of the deceased under Lord CAMPBELL'S Act (9 & 10 Vict. c. 93). It was attempted to distinguish that case from Wilson v. Merry, on the ground, among others, that the defendants were a corporation and could only act by a manager. That, however, was not considered to raise any distinction. See, also, Morgan v. Vale of Neath, 5 B. & S. 570; affirmed, L. R., 1 Q. B. 149; Indermaur v. Dames, L. R., 1 C. P. 274; affirmed, L. R., 2 C. P. 311.

In the case of Conroy v. Belfast & Northern Counties Ry. Co., 9 Ir. L. T. R. 217, recently (1875) decided by the Irish Court of Common Pleas, it was held that the defendant was not liable for an injury to a miles-man occasioned by the negligence of the traffic manager.

In a recent case in the English Court of Common Pleas, Turner v. The Great Eastern Ry. Co., 33 Law Times R. (N. S.) 431, the defendant, a railway company. employed a contractor to unload their coal trucks at shoots on sidings constructed for the purpose. The contractor employed his own laborers, among whom was the plaintiff, whom he engaged and paid, and over whom he had entire control. The plaintiff, while engaged in the work, was injured by the negligent shunting of an engine managed by the servants of the defendants, which was bringing coal trucks on to the sidings to the shoots. Held, that there was no such common employment between the plaintiff and the shunter as would disentitle the former from bringing an action against the defendants for the negligence of their servants. Lord COLERIDGE, in delivering the judgment of the court, said: "The question, then, is, whether the employment was so common between the plaintiff and the shunter who directed the engine, as to bring the case within Prestley v. Fowler, 3 M. & W. 1, and establish that the action is not maintainable. The case is a difficult one, as I have said, because it is so near the line; and the line to be drawn is one which it is not easy to state in language, and I will not attempt to give a definition calculated to meet all cases. Each case must depend upon its particular circumstances, and no single circumstance can be stated as being a certain and single test of general application; bnt several circumstances may, at any rate, be remarked upon, all, or some of which, when they occur, may show what is one side or the other of the line, which is not itself easy to be drawn. The case by which we were here most pressed was Wiggett v. Fox, 25 L. J. 188, Ex., where the defendants, Fox and Henderson, were contractors for the building of the Crystal Palace, and employed Moss to do part of the work by the piece for a certain sum, payable by mouthly installments, according to the work done. Moss employed the plaintiff, who was killed by the negligence of the defendants' servants. The Court of Exchequer held, and the decision was not questioned, that the plaintiff could not recover against Fox, because Fox and Henderson were general contractors for the whole work, and the sub-contractor was so far under Fox and Henderson's control as to make his workmen in a common employment with

Lawler v. Androscoggin Railroad Co.

those of the general contractor. That case came under consideration in Abraham v. Reynolds, 5 H. & N. 143, in 1860. There, however, the question of common employment did not arise, so far at least as a common employer is concerned, because there a servant going to get bales from a warehouse not belonging to his master, was injured by the negligence of the warehouseman's servant and on the question being raised, could he recover for the injury so taused, it was held that he could. It was held that the facts did not render the employment of the two servants a common one, or give any control to the master of either over both. This was the express ground of MARTIN'S, B., judgment, and of his assent to Wiggett v. Fox. So, too. WATSON, B., and CHANNELL, B., the latter of whom, commenting on Wiggett v. Fox, says: "But it was proved that the deceased was paid by the defendants, and it further appeared by the printed rules which were given in evidence, and by the evidence of Moss, that the defendants had a control over and power to dismiss Wiggett, though engaged by the contractors. The ground on which the judgment proceeded was therefore the payment of the plaintiff by the defendant, and the control exercised by the latter over him, so that he could dismiss him. as put by CHANNELL, B. Now both those grounds are wanting here. The defendants did not pay the plaintiff, and had no control over him so as to be able to engage or dismiss him. So on these two grounds, it seems to me that this case is clearly distinguishable from Wiggett v. Fox. Then in Sadler v. Henloch, 4 E. & B. 570, which was an action for an obstruction and nuisance on a highway caused by a man whom the defendant had employed to clean out a drain, taking up and improperly replacing part of the highway adjacent to the defendant's land, in which the drain was. The question whether the defendant was answerable to the plaintiff, whose horse was injured by falling into the hole made in the highway, depended on whether Pearson, the man employed by the defendant, was a contractor or a servant. CROMPTON, J., says in the argument:

Is not this rather a case where the employer maintains a control over the person whom he employs ;" and in his judgment, the real question is, whether the defendant and Pearson stand to each other in the relation of master and servant. I decide not on the ground that Pearson did not employ the hands of another, for if he was the defendant's servant, the defendant would be liable for the wrong-doing of the person whom the servant employed; though it is true that such employment may sometimes be a test as to whether the employer was a servant or an independent contractor. The test here is, whether the defendant retained the power of controlling the work." Now I will not say that this is the only test, but it is put there as the test by which to distinguish whether a man is a contractor or a servant; and so here it would be the test to discover whether Lanesborough was a contractor or a servant, and on this point the report of the judge says that he could engage and pay his own servants. Then, to take it in another way: suppose the situations reversed, and that the plaintiff had negligently caused injury to some one else. It seems to me extravagant to say that such a person could sue the now defendants for such injury. They would say in defense, and, as I think, say unanswerably, we had no control over the man, we did not engage him and could not dismiss him, we are therefore not liable for his negligence. If, then, in such a case an action would not lie against the railway company, it follows that the same ground which would save them there would make them liable here. It is not necessary, in my opinion, to discuss Murray v. Currie, ubi sup., there was alearly an independent employment in that case, and the peculiar circum

Lawler v. Androscoggin Railroad Co.

stances do not make it applicable here. On the whole, therefore, though the cases are cases of difficulty, I think that this is not within the authority of Wiggett v. Fox, ubi sup., and if it is not, the action is maintainable, and the plaintiff entitled to his verdict."

In Gannon v. Housatonic R. R. Co., 112 Mass. 234, it is held that the rule tha a servant cannot recover of his master for damages sustained from the negligence of his fellow-servant, does not prevent his maintaining an action against his master for consequential damages by him sustained through an injury to his wife. COLT, J., delivering the opinion of the court, said: "The implied contract on the part of the servant, by which he assumes the risk of the negligence of others, has reference to those direct injuries to which he is exposed in the course of his employment. Those injuries which are incident to the nature of his employment, he is presumed to have contemplated, and with reference to his exposure to them, to have fixed the compensation agreed on. In other respects his relation to his employer remains unchanged. He may insist on the performance of all other duties, whether they are such as are imposed by him, or such as arise from independent contracts, express or implied."

Duty of master in selecting competent servants. Tarrant v. Webb, 18 C. B. 797; McMahon v. Davidson, 12 Minn. 357; Wright v. New York Central Railroad Co., 28 Barb. 80; Frazier v. Pennsylvania Railroad Co., 88 Penn St. 104; Davis v. Detroit & Milwaukee Railroad Co. (20 Mich. 105), 4 Am. Rep. 364; Harper v. The Indianapolis, etc., Railroad Co. (47 Mo. 567), 4 Am. Rep. 353; Moss v. Pacific Railroad Co. (49 Mo. 167), 8 Am. Rep. 126; Hogan v. Central Pacific Railroad Co., 49 Cal. 128.

Master to provide sufficient and proper machinery and materials. Roberts v. Smith, 2 H. & N. 213; Weems v. Mathieson, 4 Macq. 215; Searle v. Lindsay, 11 C. B. (N. S.) 429; Holmes v. Clark, 6 H. & N. 349; 7 id. 937; Britton v. Great Western Cotton Co., L. R., 7 Exch. 130; S. C., Moak's Eng. Rep. 381; Buzzell v. Laconia, etc., Co., 48 Me. 113; Cayzer v. Taylor, 10, Gray, 274; Snow v. Housatonic Railroad Co., 8 Allen, 441; Fifield v. Northern Railroad Co., 42 N. H. 225; Harrison v. Central Railroad Co., 31 N. J. L. 293; Ryan v. Fowler, 24 N. Y. 410; Byron v. State Printing Telegraph Co., 26 Barb. 39; Conolly v. Poillon, 41 Barb. 366; Gibson v. Pacific Railroad Co. (46 Mo. 163), 2 Am. Rep. 497; Wonder v. Baltimore & Ohio Railroad Co. (32 Ind. 411), 3 Am. Rep. 143 and note; Illinois Central Railroad Co. v. Welch (52 Ill. 183), 4 Am. Rep. 593; The Chicago & Northwestern Railroad Co. v. Jackson (55 Ill. 492), 8 Am. Rep. 661; Patterson v. Pittsburgh & Connellsville Railroad Co., 76 Penn 8t. 389; Arkerson v. Dennison, 117 Mass. 407.

Master is bound to notify his servant of danger if he has knowledge of it. Williams v. Clough, 3 H. & N. 258; Perry v. Marsh, 25 Ala. 659; Coombs v. New Bedford Cordage Co. (102 Mass. 572), 3 Am. Rep. 506; Baxter v. Roberts (44 Cal. 187), 18 Am. Rep. 160, and note.

Where servant has knowledge that machinery is dangerous he assumes the risk. McGlynn v. Brodie, 31 Cal. 376; Hayden v. Smithville, 29 Conn. 548. Master is liable for his own negligence or personal interference. Ormond v Holland, El. Bl. & El. 102; Ashwix v. Stanwix, 3 El. & El. 701; 80 L. J. Q. B 103; Roberts v. Smith, 2 H. & N. 218.-REP.

Campbell v. Portland Sugar Co.

CAMPBELL V. PORTLAND SUGAR COMPANY.

(62 Me. 552.)

Negligence- liability for injury to person caused by defect in wharf — agent of owner when responsible — joint action against owner and agent not maintainable.

Plain.ff, the driver of a job wagon, was injured by stepping into a hole in a wharf, while attempting to carry a seaman's chest on board a vessel. The part of the wharf where the accident occurred was leased to A & B by the agents of the owners of the wharf, for the purpose of loading and dispatching vessels, the agents being bound to repair. Persons going to the vessel were compelled by obstructions in other parts of the wharf to take the route which plaintiff took, which was through a shed. Held, that the owners and agents were liable for the injury; but that the liability was not joint. A

verdict against both was allowed to stand against the agents on the discontinuance of the action as against the owners of the wharf.

Wharf owners and their agents, so long as they keep the wharf open and occupied, or rented for the business of loading and dispatching vessels, are bound to all whom the proffered facilities bring there, to use due care to keep the wharf and its approaches in good condition.

A

CTION to recover for personal injuries. The opinion states the case. The damages were assessed by the jury at $9,500, and at a previous trial the verdict was for $8,166.

J. & E. M. Rand, for defendants, cited Sweeny v. Railroad Co., 10 Allen, 368; Elliott v. Pray et al., id. 378; Zoebisch v. Tarbelt et al, id. 385; Wendell v. Baxter, 12 Gray, 494; Gautret v. Egerton, L. R., 2 C. P. 371; Collis v. Selden, L. R., 3 C. P. 495; Holmes V. Railway Co., L. R., 4 Exch. 255; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216; Barrett v. Black, 56 Me. 504.

Howard & Cleaves, for plaintiff. The defendants were bound to keep the wharf safe for the use of the public. Wendell v. Baxter, 12 Gray, 494; Carlton v. Franconia Iron and Steel Co., 99 Mass. 218; Stratton v. Staples, 59 Me. 94; Radway v. Briggs et al., 31 N. Y. 356; Pittsburgh v. Grier, 22 Penn. St. 54; Gibbs 7. Trustees Liverpool Dock, 3 H. & N. 175; 245; Smith v. London & St. Katherine Dock Co., 3 C. P. 326

White v. Phillips, 15 C. B.