[247]*247
By the Court,
Paine, J.
Assuming the appellant to have been a passenger upon the cars at the time of the injury complained of, we think the refusal of the court below to give the 4th instruction asked by his counsel, which was, that if the plaintiff was “ in an improper place for a passenger, yet, if he was there at the request of the company, the company was not thereby relieved' from liability ” &c., together with the remarks of the court in connection with such refusal, was calculated to mislead the jury. Perhaps the instruction as an abstract proposition, was not entirely accurate. Because if a passenger, at the request of the conductor, should take a seat on the cowcatcher, or hang himself from the platform, if injured while in that position, it is clear that the request of the conductor, would not relieve his act of that reckless negligence which would preclude his recovery. Yet we think this is very different from taking a place, which though ordinarily improper for a passenger, for the reason that men are employed by the company for the special purpose of fulfilling its duties, is yet not strictly speaking an improper place in itself, but on the contrary is one which some one must take, to fulfil a necessary duty. If by reason of any accident or otherwise, the brakeman upon a train should be disabled, and a conductor should request a passenger to perform the duty, we think he is at liberty, if he chooses, to do so. And it being a thing proper and necessary to be done, if while performing it with such reasonable care and vigilance as are consistent with the nature of the duty, he is injured by the negligence of the persons managing the train, we do not think the mere fact that he was in a more hazardous position, than he would have been in his seat, should be submitted to the jury, as proper grounds for imputing to him such negligence as would prevent his recovery. The question should be, was the place proper to be taken by any person; were the circumstances such as justified the passenger in taking it, and if so, [248]*248did he exercise reasonable care and prudence while in such position. The only reason for imputing negligence to the plaintiff, being that he was in the position of a brakeman at the time of the injury, which was a hazardous position. We think the court below mistook the former decision of this court when it refused the instruction alluded to, which may be said to be correct as applicable to the facts proved, and submitted it to the jury to say whether his being in that position was not in itself the very neglignce which this court had said might defeat the action. And as it is impossible to say upon what grounds the jury may have found their verdict, we must reverse the judgment for this reason.
But the most interesting question in the case grows out of the disputed point, whether the plaintiff should be considered at the time of the injury, as a passenger or as an employee and servant of the company. There was testimony to the effect that he had been employed for wages, to act as brakeman during that trip. And he was injured while acting in that capacity. If the jury found that he was so employed,' there seems to be no reason why he should not be considered as having been injured while acting as a servant of the company. There was no impossibility in his acting in the two capacities during the trip. And if the law applicable to an injury occurring in the one, is different from that applicable to an injury in the other, the law of the case would depend upon the capacity in which he was acting when injured. If as Holton’s Express agent, he was a passenger and would be entitled to recover for a negligent injury, as brakeman he was a servant of the company, and would not be entitled to recover for an injury while acting as such, provided the law be as assumed, that one servant cannot recover for an injury occasioned by the negligence of another. And we think there is nothing in the former decision of this court in,this case, 7 Wis., 425, inconsistent with this view. It is true the [249]*249court made the following remark: “ The proof showed that he was in a hazardous position at the request of the deputy superintendent Merrill, and if while in this position exercising ordinary care and diligence, he was injured by the carelessness and negligence of the servants of the company, he is entitled to damages.” And it is stated in the report that it appeared, that the plaintiff was employed as brakeman, and if the remark just quoted is to be construed as applicable to that state of facts, it must indicate either that the court did not think such employment would constitute him a servant of the company, or else that he might recover notwitstanding he was a servant. But we think that a careful examination of the concluding portion of the opinion will show, that the remark above quoted, was only made upon the hypothesis that the plaintiff was to be regarded as a passenger, because the court says that the company contended, that the proof showed that the injury happened while the plaintiff was acting as a servant, and that if so he could not in law recover, and then they answer this proposition by saying that the court so charged the jury, and therefore upon that point, the company had nothing to complain of. And this shows that the prior remarks were upon the assumption that the finding of the jury had negatived this claiming of the company, that he was acting as servant.
It seems therefore necessary for us to determine whether the law is as claimed by the company, that one servant cannot recover of his employer for an injury occasioned by the negligence of another servant engaged in the same business. From the head note to this case, when it was here before, it would appear that this court had then decided the question in the negative. But from an examination of the case, we do not think it can be said to have that effect. On the contrary, this point of law seems not to have been contested there; probably for the reason that the plaintiff's counsel re[250]*250lied on the peculiar facts in the case, to make it an exception to the rule claimed, rather than on a denial of the rule itself. Such being the case, the court was not called on to examine the question, nor does the opinion assume to examine or decide it. The court only says, in answer to the claim by the company that such was the law, that the court below so instructed the jury, and therefore the company had nothing to complain of. We cannot therefore regard this question, which had not before been\decided in this state, and is one of deep interest, as settled by that decision, and Mr. Justice Cole, by whom the opinion was then delivered, does not so regard it.
The general rule is conceded, that every person is responsible for injuries occurring to others by the negligence of his servants, while in the execution of his employment. This rule settles the question, unless the fact that the person injured is also a servant of the same employer, is just ground for making it an exception. That the majority of the cases which have passed upon the point, both in this country and in England, have recognized this as an exception, cannot be denied. And if it is only the duty of a court to count the cases on each side of a question, and decide in favor of the majority, this matter could be very readily determined j though upon some questions, with the rapidity with which judicial decisions are multiplying, this rule might require considerable arithmetical capacity.
Free access — add to your briefcase to read the full text and ask questions with AI
[247]*247
By the Court,
Paine, J.
Assuming the appellant to have been a passenger upon the cars at the time of the injury complained of, we think the refusal of the court below to give the 4th instruction asked by his counsel, which was, that if the plaintiff was “ in an improper place for a passenger, yet, if he was there at the request of the company, the company was not thereby relieved' from liability ” &c., together with the remarks of the court in connection with such refusal, was calculated to mislead the jury. Perhaps the instruction as an abstract proposition, was not entirely accurate. Because if a passenger, at the request of the conductor, should take a seat on the cowcatcher, or hang himself from the platform, if injured while in that position, it is clear that the request of the conductor, would not relieve his act of that reckless negligence which would preclude his recovery. Yet we think this is very different from taking a place, which though ordinarily improper for a passenger, for the reason that men are employed by the company for the special purpose of fulfilling its duties, is yet not strictly speaking an improper place in itself, but on the contrary is one which some one must take, to fulfil a necessary duty. If by reason of any accident or otherwise, the brakeman upon a train should be disabled, and a conductor should request a passenger to perform the duty, we think he is at liberty, if he chooses, to do so. And it being a thing proper and necessary to be done, if while performing it with such reasonable care and vigilance as are consistent with the nature of the duty, he is injured by the negligence of the persons managing the train, we do not think the mere fact that he was in a more hazardous position, than he would have been in his seat, should be submitted to the jury, as proper grounds for imputing to him such negligence as would prevent his recovery. The question should be, was the place proper to be taken by any person; were the circumstances such as justified the passenger in taking it, and if so, [248]*248did he exercise reasonable care and prudence while in such position. The only reason for imputing negligence to the plaintiff, being that he was in the position of a brakeman at the time of the injury, which was a hazardous position. We think the court below mistook the former decision of this court when it refused the instruction alluded to, which may be said to be correct as applicable to the facts proved, and submitted it to the jury to say whether his being in that position was not in itself the very neglignce which this court had said might defeat the action. And as it is impossible to say upon what grounds the jury may have found their verdict, we must reverse the judgment for this reason.
But the most interesting question in the case grows out of the disputed point, whether the plaintiff should be considered at the time of the injury, as a passenger or as an employee and servant of the company. There was testimony to the effect that he had been employed for wages, to act as brakeman during that trip. And he was injured while acting in that capacity. If the jury found that he was so employed,' there seems to be no reason why he should not be considered as having been injured while acting as a servant of the company. There was no impossibility in his acting in the two capacities during the trip. And if the law applicable to an injury occurring in the one, is different from that applicable to an injury in the other, the law of the case would depend upon the capacity in which he was acting when injured. If as Holton’s Express agent, he was a passenger and would be entitled to recover for a negligent injury, as brakeman he was a servant of the company, and would not be entitled to recover for an injury while acting as such, provided the law be as assumed, that one servant cannot recover for an injury occasioned by the negligence of another. And we think there is nothing in the former decision of this court in,this case, 7 Wis., 425, inconsistent with this view. It is true the [249]*249court made the following remark: “ The proof showed that he was in a hazardous position at the request of the deputy superintendent Merrill, and if while in this position exercising ordinary care and diligence, he was injured by the carelessness and negligence of the servants of the company, he is entitled to damages.” And it is stated in the report that it appeared, that the plaintiff was employed as brakeman, and if the remark just quoted is to be construed as applicable to that state of facts, it must indicate either that the court did not think such employment would constitute him a servant of the company, or else that he might recover notwitstanding he was a servant. But we think that a careful examination of the concluding portion of the opinion will show, that the remark above quoted, was only made upon the hypothesis that the plaintiff was to be regarded as a passenger, because the court says that the company contended, that the proof showed that the injury happened while the plaintiff was acting as a servant, and that if so he could not in law recover, and then they answer this proposition by saying that the court so charged the jury, and therefore upon that point, the company had nothing to complain of. And this shows that the prior remarks were upon the assumption that the finding of the jury had negatived this claiming of the company, that he was acting as servant.
It seems therefore necessary for us to determine whether the law is as claimed by the company, that one servant cannot recover of his employer for an injury occasioned by the negligence of another servant engaged in the same business. From the head note to this case, when it was here before, it would appear that this court had then decided the question in the negative. But from an examination of the case, we do not think it can be said to have that effect. On the contrary, this point of law seems not to have been contested there; probably for the reason that the plaintiff's counsel re[250]*250lied on the peculiar facts in the case, to make it an exception to the rule claimed, rather than on a denial of the rule itself. Such being the case, the court was not called on to examine the question, nor does the opinion assume to examine or decide it. The court only says, in answer to the claim by the company that such was the law, that the court below so instructed the jury, and therefore the company had nothing to complain of. We cannot therefore regard this question, which had not before been\decided in this state, and is one of deep interest, as settled by that decision, and Mr. Justice Cole, by whom the opinion was then delivered, does not so regard it.
The general rule is conceded, that every person is responsible for injuries occurring to others by the negligence of his servants, while in the execution of his employment. This rule settles the question, unless the fact that the person injured is also a servant of the same employer, is just ground for making it an exception. That the majority of the cases which have passed upon the point, both in this country and in England, have recognized this as an exception, cannot be denied. And if it is only the duty of a court to count the cases on each side of a question, and decide in favor of the majority, this matter could be very readily determined j though upon some questions, with the rapidity with which judicial decisions are multiplying, this rule might require considerable arithmetical capacity. But if the reason of the law be the soul of the law, and such we understand to have ever been its proudest boast, then a court has, although a more difficult, yet a more worthy task, and has not only to count but to weigh the cases, and by this test the majority do not always rule. And such we think to be the result here.
The question has been very thoroughly examined in the following cases: Gillentwater vs. The Madison & Indianapolis R. R. Co., 5 Port. (Ind.,) 339; Fitzpatrick vs. New Albany [251]*251& Salem R. R. Co., 7 id., 436; Little Miami R. R. Co. vs. Stevens, 20 Ohio, 415; and Railroad Company vs. Keary, 3 Ohio St Rep., 201. The law of Scotland upon this subject, which is also referred to in these cases, is more fully stated in Dixon vs. Rankin, found in 1 Amer. R. R. Cases, 569. As a matter of principle we concur fully with the reasoning of the Scottish justices, which is such as should commend itself to every right thinking mind and every right feeling heart. And the general reasoning by which the courts of Ohio and Indiana sustain the liability of the company in each of the partic-' ular cases mentioned, is of the same character. But in the cases in Indiana the servant injured was not engaged in the same department of business, as the one by whose negligence the injury was caused; and the court states this as a reason for distinguishing them from those which had decided against any liability. While the cases in Ohio, which are themselves authorities against this distinction, profess, or at least the later cases do, to recognize another, and while holding the company liable for an injury to a subordinate, occasioned by the negligence of his superior, admit that such liability would not exist, when the one injured occupied the position of an equal in the employment, with respect to the one causing the injury. While recognizing therefore, the reasoning of these courts, as stating clearly the grounds upon which liability in such cases rests, we shall attempt to show that that reasoning is entirely inconsistent with the distinctions they profess to admit, and necessarily, establishes the liability without reference to those distinctions. And that the latter must have been suggested out of deference to authorities, from which they did not care to depart, further than the facts of the case made necessary.
And first, as to the distinction suggested by the cases in Indiana, exempting the principal from liability where the negligence was committed by a servant working in the same de[252]*252partment as the one injured. Can this be sustained without overturning the very principles on which the court sustained the liability, where the negligence occurred in a different department? We think not. The only view in which that circumstance should be material would seem to be this. Where the servant injured was himself engaged at the immediate point where the negligence occurred, that might furnish some grounds to implicate him in the negligence. And for the purpose of determining whether his own negligence contributed to the injury, it would be proper to inquire whether he was working at the point where it occurred. But, conceding the one injured to have performed his whole duty with skill and care, it seems entirely immaterial whether he is injured by the negligence of one working in the same department or in another. The company is held liable, because, in setting a force in motion, to be used for its benefit, it is bound to see to it, that it is employed with proper care and skill. But does not this obviously extend to the different duties in the same department, as well as to those of different departments ? The great object of this common law principle is not to protect those in one department as against those in another, but to protect every one from injury by the negligence of another. Now, the court classes all whose duties are connected with the running of the cars, as engaged in the same department. Yet, everybody knows that this department requires various duties entirely separate and distinct in their character. So that a servant performing one, can, by no just reasoning, be held responsible for the negligence of another. A brakeman has to act in obedience to siguals by the engineer; but he has no connection whatever with the performance of the duties of the engineer. Where it is conceded therefore that the com pany is bound to conduct the force it sets in motion' with proper care and skill, upon what principle can it be maintained, that they may, through their engineer, so, negligently [253]*253manage the engine, as to mangle the brakemen and all their other servants on the train, and yet he entirely irresponsible ? In our judgment no rational answer has been or can be given to this question.
It has been said that the servant, in undertaking the business,-has, by his contract, agreed to assume all risks; that of negligence as well others. But the court of Indiana justly repudiates this idea. It says: “ True, there are authorities for the position, that when a party contracts to perform services, he takes into account ‘ the dangers and perils’ incident to the employment, but this can only be intended to mean such £ dangers and perils’ as necessarily attend the business when conducted with ordinary care and prudence. He cannot be presumed to contract with reference to injuries inflicted on him by negligence.”
That court therefore, would not sustain their distinction, by which a servant would be remediless for an injury by the negligence of another in the same department, on the ground that by his contract he had assumed the risk of such negligence. They say he does not contract with reference to any injuries to be inflicted on him by negligence. They therefore deprive themselves of all support for their distinction from one of the strong grounds relied on by all the cases, in favor of the exemption from liability.
The only other ground upon which this exemption is claimed at all, is that public policy requires it. It is rather faintly suggested by the court of Ohio, in Railroad vs. Keary, that “ public policy may be concerned in their keeping a supervision over each other,” &c. And if this is true, then the distinction between those serving in different departments might be valid, for the reason that those in the same department might supervise each other, and not those in other departments. But there seems to be no solid foundation for the idea that public policy requires this exemption. The only [254]*254possible ground upon which it could rest, would be the supposition that employees upon railroads and other improvements which the public use, would be more vigilant to prevent injuries from the negligence of each other, if they knew they could not recover damages against the company, than they would with the opposite belief. But this notion is based upon a false estimate of the motives which govern human action. The lives and limbs of these employees are at hazard along with those of the public, and all human experience and consciousness, abundantly testify that to the motives which these furnish, the right to an action for damages could add nothing. There seems, therefore, no reason for sustaining the doctrine upon that ground. In truth, the argument to be derived from public policy is the other way. First. These employees are a portion of the public, and the safety of the rest not requiring it, there can be no just reason for excluding them from that protection, which it is the policy of the law to furnish to every one, against injury by the negligence of others. Next, by just so much as the liability of the employer for the negligence of his servants, is reduced, by just so much are the motives diminished which induce him to employ servants of the greatest skill and vigilance. And if from this relaxation, negligent servants are employed, the public at large, as well as the other employees, run the hazard of the calamities arising from it.
And it is proper, in connection with this view, to consider the suggestion made in some of the cases, that an employee, where he sees that other negligent persons are employed, may leave the service. This suggestion is made in Farwell vs. Railroad Co., A Met., 59. Now suppose this view practically carried out, those employees who are themselves vigilant and attentive, find that there are some others negligent or reckless. The law furnishes them no protection against injuries by these, and the employer not being liable except as to the pub-[255]*255lie, chooses to run the risk. The prudent and faithful servants, in obedience to the advice of the supreme court of Massachusetts, leave the service. What position would the public then be in ? The faithful, careful servants have left in obedience to the law, whose policy would not protect them by holding their employer, under the strongest possible inducements, to employ the most faithful and careful servants with them, and so by the operation of public policy, the public are left to the mercy of the negligent. This doctrine, therefore, seems to rest only on a purely imaginary influence of the absence of any right of action to create additional vigilance on the part of employees, while it overlooks the real influence which the liability to an action has upon the company, to induce it to employ the most skillful and careful servants. And, indeed, this suggestion of public policy seems to have been made with some hesitation in the later cases,while following the English cases, which first established the exemption from liability upon other grounds.
In Priestly vs. Fowler 3 M. and W., 1, which was the first case upon the subject although the court dwells upon the inconvenience which masters might suffer, they do not place their decision upon public policy. And such a suggestion would have been somewhat ludicrous in that case, as it is difficult to see how public policy could be very deeply inter- • ested in the loading of a private cart.
We think, therefore, that the cases in Ohio and Indiana^ following the dissenting opinion of Judge O’Neal, in the case in South Carolina, 1 McMullan, have overturned the only two grounds upon which this exception has ever been placed, and having overturned them, they leave no foundation for the distinctions which they admit.
Thus the cases in Ohio ignore the distinction implied in Indiana, and hold the company liable to the engineer for the negligence of the conductor, though"both were in the same [256]*256department. But then they place it upon the ground that the engineer was subordinate to the conductor. But what bearing does that have upon the principles upon which they assert the liability ? None at all that we can possibly discover. They hold the company liable, because having set a force in motion for their own benefit, they are bound to see that it is conducted with proper care and skill, so as not to injure others. In order to do that, it is necessary that proper directions should be given. And if the company choose to give these directions through a conductor, and he was negligent, that was their negligence, and they had failed in their duty, and should be responsible. But if these principles are correct, as they undoubtedly are, is it not equally clear that, in order to manage the force which they have set in motion properly, that proper directions must be properly executed as well as given ? This is too obvious for question. Can the same court which has said to one brakeman that the company is bound so to manage the force it sets in motion, as not to injure him by negligence, and has given him a judgment for the negligence of the conductor, with any consistency say to another who has been injured by the negligence of the engineer, that he cannot recover, because he was not subordinate? Suppose the conductor himself, having used every care and vigilance, is injured by the negligence of the engineer, whom he did not employ,but the company did; is he without remedy ? If so, the court must abandon its general principle, that he who set a force in motion, is bound so to control it as not to injure others. That principle and the distinction cannot both stand. For the question whether the one injured stood in the relation of equal, subordinate, or superior to the one whose negligence committed the injury, except so far as it might tend to show whether his own negligence contributed thereto, is entirely immaterial.
We are satisfied, therefore, that the general principles of the [257]*257common law sustain this liability, and that those cases which have attempted to establish an exception, do not rest upon solid ground. If the plaintiff was injured by the negligence of the engineer, even though he was at the time a servant of the company, he himself being guilty of no negligence, which contributed to the injury, he is entitled to recover.
For these reasons the judgment must be reversed, and the cause remanded for a new trial.
Cole, J.
I do not wish to be understood as expressing any opinion whatever upon one question so fully discussed in the opinion of Justice Paine, filed in this case, namely, as to whether one servant or employee can maintain an action against his principal for injuries which he has sustained by or through the carelessness of another servant, in the employ of the same principal, while engaged in the same common service. I think the case should be reversed, for the reason that the circuit court improperly instructed the jury as to the effect and meaning of the former decision. I did not suppose the language used in that decision could be misunderstood, or could fairly have the construction which the circuit judge placed upon it. Certainly, the qualification or proviso added to the language of that opinion was not in my mind when I prepared it. If the opinion is considered with reference to the instruction before us on that occasion, the meaning will be obvious.
■ But whether the appellant could recover if it appeared that he was an employee of the company at the time he received the injuries complained of, I will express no opinion. That is a very interesting and important question, which I have not had time fully to consider; and the decisions upon that point, in this country and in England, are quite unanimous [258]*258that a recovery could not he had under such circumstances. But whether these decisions rest upon sound reason and an enlightened public policy, I will not now undertake to say.