Injuries from Defective Crossings. — The liability of the company for injuries to travellers on the highway, caused by its negligence. in the construction and maintenance of proper crossings, has been considered in an earlier chapter.1

1 Ante, Chap. VIII. p. 248.

CHAPTER XIII.

INJURIES TO SERVANTS.

General Doctrine of a Master's Non-liability to a Servant for the Acts of Fellow-servants. - The liability of a common carrier to passengers depends on his peculiar contract for safe transportation. The liability of persons lawfully using highways, or exercising other independent rights, is determined by the pervading principle of social duty as well as of the common law, that each must exercise his right with due regard to the equal right of others; and such liability extends to the acts of servants when performed in the course of their employment. The liability of a master to his servant differs not only from that of the common carrier, but also from that of persons who bear no relation of privity to each other. It is determined by a contract which the law, guided by considerations of public policy, implies from the relation of the parties. The master is under an obligation to each servant to use reasonable care in associating with him servants who are, in fidelity and intelligence, competent for their duties; but an agreement to be responsible to each servant for the particular acts of negligence or breaches of duty of other servants, whom he has used due care in selecting, cannot reasonably be implied from the contract of hiring. The servant, by entering on and continuing in the employment, is presumed to take upon himself its natural and ordinary risks and perils, among which are the negligent acts of fellow-servants, in whose selection the master has used reasonable care, and in legal presumption his compensation is adjusted accordingly. To extend the master's liability further, and hold him liable to his servants in like manner as to third persons for the negligent acts of fellow-servants, would, it has been deemed by the best judicial opinion, encourage persons engaged in a common service to be less observant of each other's fidelity, and less disposed to report to the employer instances of their incompetency and untrustworthiness.

The doctrine here stated was, in England, first declared in 1837, by Lord Abinger, in a case since much cited.1 It was held in South Carolina in 1841, in a decision 2 which made no reference to the English authority, and was affirmed in Massachusetts in 1842, in an elaborate opinion of Chief Justice Shaw, which has become the leading American case. It is now established law in this country, as well as in England 5 and Scotland."

Where, therefore, persons are employed by a railroad company to perform the same or separate duties, all tending to the accomplishment of one and the same general purpose or end, that of the maintenance and management of the railroad, one person so employed cannot maintain an action against the company for any injury received by him through the careless, negligent, or unskilful act of another engaged in the same service."

The policy and justice of the rule have been sometimes questioned,' and the rule itself has been rejected in two States. It has been changed or modified by statute in Iowa and Georgia,1 though in the former State only as relating to employees engaged in operating the road. In Wisconsin, it is, by statute, not to be applied to the employees of railroad companies.5 Elsewhere in the United States it has been generally adopted, though in some jurisdictions, while nominally accepted, it is so qualified by exceptions and refinements that little remains of it. It is better to reject it altogether than to fritter it away by minute and unintelligible distinctions." In Pennsylvania the rule has been extended by statute to other persons not servants of the company, who are employed or engaged on or about its road or works.7

-

Rule applied to Minors. The rule applies to minors and persons of immature judgment who are injured by the negligence of fellow-servants.8 But the immaturity and inexperience are to be considered on a question of their contributory negligence or sufficiency of knowledge as to the danger to which they are exposed.9

1 Little Miami R. Co. v. Stevens, 20 Ohio, 415; Cleveland, C., & C. R. Co. v. Keary, 3 Ohio St. 201; Burke v. Norwich & W. R. Co., 34 Conn. 474. For Baron Bramwell's defence of the rule, see 11 Cent. L. J. 123. The text of the English 'Employers' Liability Bill," defining and modifying the rule, is given in 22 Albany L. J. 276.

2 Louisville & N. R. Co. v. Collins, 2 Duvall, 114; Louisville & N. R. Co. v. Robinson, 4 Bush, 507; Louisville & N. R. Co. v. Filbern, 6 Bush, 574; Louisville, C., & L. R. Co. v. Mahony, 7 Bush, 235; Haynes v. East Tenn. & G. R. Co., 3 Cold. 222. It was at first rejected in Wisconsin Chamberlain v. Mil. & M. R. Co., 11 Wis. 238, 7 Wis. 425; but was afterwards approved in that State : Moseley v. Chamberlain, 18 Wis. 700; Cooper v. Mil. & P. R. Co., 23 Wis. 668.

3 Deppe v. Chicago, R. I., & P. R. Co., 38 Iowa, 592, 36 Iowa, 52; Schroeder v. Chicago, R. I., & P. R. Co., 41 Iowa, 344, 47 Iowa, 375; McKnight v. Iowa & M. R. Const. Co., 43 Iowa, 406; Potter v. Chicago, R. I., & P. R. Co., 46 Iowa, 399; Pyne v. Chicago, &c. R. Co., 11 Cent. L. J.

55. The statute is local, and will not be applied where the action is brought in another State. Anderson v. Mil. & St. P. R. Co., 37 Wis. 321.

Thompson v. Central R. & B. Co., 54 Ga. 509; Western & A. R. Co. v. Adams, 55 Ga. 279; Marsh v. South Carolina R. Co., 56 Ga. 274; Georgia, R., & B. Co. v. Rhodes, 56 Ga. 645.

5 Berg v. Chicago, M., & St. P. R. Co., 7 Northwest. Rep. 347.

6 Vose v. Lancashire & Y. R. Co., 2 Hurl. & N. 728; Michigan Cent. R. Co. v. Dolan, 32 Mich. 510.

7 Ricard v. North Penn. R. Co., 89 Pa. St. 193.

8 King v. Boston & W. R. Co., 9 Cush. 112; Brown v. Maxwell, 6 Hill, 592; De Graff v. New York Cent. & H. R. R. Co., 76 N. Y. 125, 3 Thomp. & C. 255; Ohio & M. R. Co. v. Hammersley, 28 Ind. 371; Sullivan v. Toledo, W., & W. R. Co., 58 Ind. 26; Gartland v. Toledo, W., & W. R. Co., 67 Ill. 498; Houston & G. N. R. Co. v. Miller, 51 Tex. 270; Murphy v. Smith, 19 C. B. N. s. 361.

9 Coombs v. New Bedford Cordage Co., 102 Mass. 572; Sullivan v. India Man.

It has been held not to apply to slaves, who have no freedom of volition. It is applied to the construction of statutes giving a right of action to the personal representatives or relatives of a deceased person against parties by whose negligence his death was caused, which are held not to give such right against a master in case of the death of one servant caused by the negligence of his fellow-servants.2

Common Service. -The terms 66 common service or employment" are to be understood in a broad, rather than a limited signification. Employees are associated in such a service when they are engaged in accomplishing the ultimate purpose in view, as the working of the railroad,3 and the safe and rapid transmission of the trains.1 The "common," and not the " common immediate," object is to be regarded.5 The employees are within the relation where one may, in entering the employment, foresee that injuries from the negligence of the other is one of its natural or ordinary risks, or where the duties of one necessarily or naturally expose him to hazard from the negligence of the other. It has been said that all being regarded as fellow-servants who are engaged in the common service of operating the road," in this sense those employed in facilitating the running of the trains by ballasting the track, removing obstructions, or keeping guard to prevent obstructions, and those employed at stations, attending to switches, and other duties of a like nature upon the road, as well as those upon the trains, operating, may all be well regarded as fellow-servants in the common service." 8 The attempt to

Co., 113 Mass. 396; O'Connor v. Adams, 120 Mass. 427; Hill v. Gust, 55 Ind. 45; Union Pacific R. Co. v. Fort, 17 Wall. 553; Johnson v. Bruner, 61 Pa. St. 58; Grizzle v. Frost, 3 Fost. & F. 622.

1 Scudder v. Woodbridge, 1 Ga. 195; Louisville & N. R. Co. v. Yandell, 17 B. Monr. 586. See Cook v. Parham, 24 Ala. 21.

2 Hutchinson v. York, N., & B. R. Co., 5 Exch. 343; Wigmore v. Jay, 5 Exch. 354; Connor v. Chicago, R. I., & P. R. Co., 59 Mo. 285.

3 Hard v. Vt. & C. R. Co., 32 Vt. 473; Wonder v. Balt. & O. R. Co., 32 Md. 411, 418; Wright v. New York Cent. R. Co., 25 N. Y. 562, 565; Columbus & I. C. R. Co. v. Arnold, 31 Ind. 174.

4 Farwell v. Boston & W. R. Co., 4

Met. 49, 55; Waller v. South Eastern R.
Co., 2 Hurl. & C. 102.

5 Morgan v. Vale of Neath R. Co., L. R. 1 Q. B. 149, 155; Lovell v. Howell, L. R. 1 C. P. Div. 161, 168; Charles v. Taylor, L. R. 3 C. P. Div. 492; Blake v. Maine Cent. R. Co., 70 Me. 60.

6 McAndrews v. Burns, 10 Vroom, 117, 119, 120; Mullan v. Phil. & S. M. Steamship Co., 78 Pa. St. 25.

7 Chicago & A. R. Co. v. Murphy, 53 Ill. 336, 339; Valtez v. Ohio & M. R. Co., 85 Ill. 500, 502; Cumberland & P. R. Co. v. State, 44 Md. 283, 292. But see Chicago & N. W. R. Co. v. Moranda, 93 Ill. 302.

8 Manville v. Cleveland & T. R. Co., 11 Ohio St. 417; Columbus & I. C. R. Co. v. Arnold, 31 Ind. 174, 183.