Gilman v. Eastern Railroad

92 Mass. 233

Opinion

Gray, J.

*

The case presented by this report is to be determined by the application of rules now too well established to require an elaborate statement of the reasons on which they are founded, or an extended examination of the authorities by which they are supported.

A servant, by entering into his master’s service, assumes all the risks of that service, which the master cannot control, including those arising from the negligence of his fellow-servants. In case of an injury to one servant by the negligence of another, it is immaterial whether he who causes and he who sustains the injury are or are not engaged in the same or similar labor, or in positions of equal grade or authority. If they are acting together under one master in carrying out a common object, they are fellow-servants. The master indeed is bound to use ordinary care in providing suitable structures, engines, tools and apparatus, and in selecting proper servants, and is liable to other servants in the same employment if they are injured by his own neglect of duty. But it makes no difference whether the master is an individual or a corporation; in either case, he is responsible to his servants for his own negligence, but not for that of their fellow-servants.

The first attempt to hold a master responsible to one servant for the negligence of another was made in England less than thirty years ago, and was defeated by the judgment of the court of exchequer. Priestley v. Fowler, 3 M. & W. 1. Not long afterwards a similar attempt was made in this court, with the like result, as announced in an elaborate opinion of the late chief justice. Farwell v. Boston & Worcester Railroad, 4 Met 49. Many other cases followed in Great Britain, in which the English courts uniformly maintained the same doctrine, but the Scotch judges were less consistent. At last two cases were brought by appeal from the courts of Scotland to the house of lords, there argued by the ablest counsel, and after deliberate advisement and careful examination of all the English and Scotch cases and of the opinion of Chief Justice Shaw, decided, according to the unanimous opinion of Lords Cranworth, Chelmsford, Brougham and Wensleydale, in favor of the master, upon principles of general jurisprudence, applicable alike to England and Scotland. Bartonshill Coal Co. v. Reid & McGuire, 3 Macqueen, 266, 300. In the quaint phrase of the reporter, “ Reid and McGuire were both victims of the same accident, which, though melancholy, has settled the law.” Ib. 301, n.

In this court the rule has been upheld under a great variety of circumstances. A railroad corporation has been held not to be liable to an engineer on a train for an accident from the negligence of a switchman; Farwell v. Boston & Worcester Railroad, above cited; nor to one brakeman for the negligence of another on a different train; Hayes v. Western Railroad, 3 Cush. 270. Só a woman working in a manufactory cannot maintain an action against the corporation owning it for an injury occasioned by the negligence of the superintendent. Albro v. Agawam Canal Co. 6 Cush. 75. A railroad corporation has been held not to be responsible in damages for an injury to an apprentice in its machine shop, while acting as fireman on a train, for a defect in a switch, where no want of ordinary care on the part of the corporation was shown; King v. Boston & Worcester Railroad, 9 Cush. 112; nor to a laborer, employed to repair the road-bed, while being carried to his place of work, by the negligence of those in charge of the train; Gillshannon v. Stony Brook Railroad, 10 Cush. 228; nor to a carpenter, carried over the railroad to repair its fences, bridges and switch frames, by negligence of the engineer, or of servants whose duty it was to inspect the axles of the cars; Seaver v. Boston & Maine Railroad, 14 Gray, 466.

These cases, especially those of Gillshannon or. J Seaver, cannot be distinguished in principle from the present. In each of those two, as in this, the plaintiff’s work did not begin until his arrival at his destination ; and in this, as in those, the work was upon the structures, means or instruments with which the defendants were to carry on their business of common carriers, the workman paid nothing for his passage, and the object of the defendants in carrying him was to get him to his place of work. Bisks from the negligence of a switchman, like those from the negligence of the engineer and other servants in charge of the train, must or should have been contemplated by the plaintiff as incident to the employment which he had undertaken. The case of Russell v. Hudson River Railroad, 17 N. Y. 134, is to the same effect. And the cases in the house of lords, above cited, were actions against a mining company for injuries occasioned- to miners, who worked in the mine all day, by the negligence of the man who let them down in the morning and drew them up at night.

The plaintiff was therefore a fellow-servant of the switchman, and not entitled to recover of their common master for any injury occasioned by the negligence of the switchman or other servant in the same employment.

But it is quite as well settled, both in England and America, that a master is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of their fellow-servants for his negligence in this regard. Tarrant v. Webb, 18 C. B. 797. Bartonshill Coal Co. v. Reid, 3 Macqueen, 272, 287, 288. Ormond v. Holland, El., Bl. & El. 102. Weems v. Mathieson, 4 Macqueen, 215. Clarke v Holmes, 7 Hurlst. & Norm. 937, affirming S. C. 6 Hurlst. & Norm. 349. Keegan v. Western Railroad, 4 Selden, 175. Cayzer v. Taylor, 10 Gray, 274. Snow v. Housatonic Railroad, 8 Allen, 441. The duty of selecting fit servants belongs to the master, whether the master is an ndividual or a corporation. The same tests of the liability of masters have been applied to corporations as to individuals in the English decisions above cited, and in our own cases, from FarweWs in the 4th of Metcalf to Snow’s in the 8th of Alan. To vary the rule in the case of corporations, upon the ground that they must always act by servants or agents, would be to exempt them from liability altogether.

The evidence offered by the plaintiff at the trial was competent to show that the defendants knowingly, or in ignorance caused by their own negligence, employed an habitual drunkard as a switchman, and thereby occasioned the accident. Of the sufficiency of this evidence a jury must judge. If the plaintiff can satisfy them that such misconduct or negligence in the defendants caused the injury, and that he himself used due care, he may maintain his action.

Case to stand for trial.

Bigelow, C. J. did not sit in this case.