N. O., J. & G. N. R. R. Co. v. Hughes

49 Miss. 258

• Court: Mississippi Supreme Court
• Decided: October 15, 1873
• Status: Published

Opinion

SiMRAtu, J.,

delivered the opinion of the court:

The question chiefly discussed at the bar was, whether a servant could recover from his master, for injuries resulting from the carelessness and negligence of a fellow servant engaged in a common business, and if so, under what circumstances.

At this day, associations of numerous persons and their capital undertake and conduct many of the great enter: prises. Whether united into partnerships or corporations, they require a great number of subordinate agents and employes. The corporation being an ideal personage, conducts its affairs exclusively by agents and servants. To a very large degree, capital has been brought together in incorporated companies for purposes of mining, manufacturing and transportation of freight and passengers; for which individual means would be wholly, inadequate. The internal transportation of products and passenger travel is mainly performed by the railroad companies. These, deriving their corporate existence and powers from the States severally, have, from the exigencies of intercouse and commerce, so knit together as to become a system common to the whole country. Their duties and responsibilities to the public, as carriers, are matters in which the whole community is interested, and rest upon grounds of expediency and policy. So vast has grown to be the multitude of their servants and employes, in constructing, repairing and operating the roads, contributing in such various capacities to carry forward its business, that it may be also said that the community have an interest in those rules which define the relations of the employes with each other, and with their common master, the railroad corporation. On account of the pervading influence, direct and remote, which any rule may have, the subject increases in gravity and importance.

It must be assumed that the servant takes upon himself the natural and ordinary perils incident to the business about which he is employed. Where many are co-operating in a common enterprise, the risk and exposure of each, is increased. If several are engaged in the same work, although their duties are distinct, one employed on one part and another on another, yet the united labor of all, being necessary to carry it on to completion ; it is a fair inference that each employe estimates the exposure to danger incident to the continuation of the many, and undertakes the risk. Such perils are indeed ordinary, and necessarily belong to the business. Each for himself takes into the account his exposure, from the want of prudence and caution from every other. There is no trouble in apprehending the fitness and propriety of the principle, where the work to be done is concentrated, and the employes are kept in close contact, as where the eye and ear may command the scene of operations and detect the imminent danger. But where the work is vast and ramified, like a railroad stretching across degrees of latitude, requiring the services of hundreds, and perhaps thousands of employes, of every degree of skill and intelligence, from the ordinary laborer, to the machinist and the man of high scientific attainments, and when these employes are so numerous and widely scattered that few can know each other; the mind pauses and reflects, before assenting to the proposition, that each individual who enters the service of such a corporation, takes the risk of the prudence, and carefulness of every other engaged in its multiplied duties, and department of business. The mind readily assents that such risk ought to be incurred as respects those associated in the same line of duty and in the same department of business. Yet, whilst this may be so, such intrinsic difficulties arise, in making the classification, that a great j urist has declared that it has been impossible to frame a rule of practical utility.

The general principle which prevails in England, and in most of the American States, is, that a servant accepting employment for the performance of specified duties takes upon himself the natural and ordinary perils incident to the service, of which, are exposures from negligence of fellow-servants in the same common employment. Priestly v. Fowler (in 1837), 3 Mees. & Welb., 1, is the first and the leading case in England. There the servant was injured by the breaking down of a saw. It was stated by the Chief Baron that there was no precedent for the action, but it must be decided by general principles, with reference to'the «consequences of a decision one way or the other. Whilst the master was bound to provide for the safety of his servant in the course of his employment, negligence must be brought home to him before he is liable. The first case in this country was Murray v. R. R. Co., 1 McMillan, 398 (in 1841), a fireman was seriously hurt by the conceded negligence of the engineer. Lord Abinger’s judgment in Priestly v. Fowler was not brought to the notice of the court, but the same conclusion was reached from similar considerations. The relations of the parties and their relative duties are thus stated : Where there are several servants or agents, “ each stipulates for the performance of his several part.” They are not liable to the company for the conduct of each other, nor is the company liable to one for the misconduct of another.” Nest followed the case of Farwell v. R. R. Co., 4 Metcalf, 49, when the subject received the careful consideration and approval of that great jurist, Oh. J. Shaw.

Until 1837, no case had arisen in England, of a servant seeking redress from the master for injuries sustained in the ■course of his employment, because of the negligence or misconduct of a fellow servant. The first instance in this country, of such an action, and that at the suit of the employe of a railroad company, is that of Murray v. R. R. Co. (supra). It may be remarked of this case, that it was thoroughly argued at the bar, as an action new in the instance, depending upon considerations of policy, the consequences to flow from the decision, one way or the other, furnishing the surest test of the judgment that ought to be pronounced. The reasoning of the courtis a comparison of the influences, whether for good or evil, that would ensue, to the employes of the company, the railroad corporation and its business, by sustaining or overruling the suit.

The general doctrine of these cases has been uniformly followed in England and in most of the States. These are some of the more prominent cases: Hutchinson v. T. & N. & B. R. R. Co., 5 Exch., 343; Skip v. Eastern Counties R. R. Co., 24 Eng. L. and Eq., 396; Brown v. Maxwell, 6 Hill (N. Y.), 592 ; Frazier v. P. R. R. Co., 38 Penn. St., 104; Ryan v. C. V. R. R., 23 Penn. Rep., 384 ; R. R. Co. v. Bacon, 6 Porter (Ind.), 205 ; Carle v. B. & P. C. R. R. Co., 43 Maine, 269; Ind. R. R. Co. v. Love, 10 Ind., 554.

In Ohio and Kentucky the courts have modified the rules, so as to fix liability upon the company, where the servant injured was under the control of a superior who was guilty of negligence. Railroad Company v. Stephens, 20 Ohio Rep., 415; Railroad Company v. Keary, 3 Ohio St. Rep., 201; subsequently in Railroad Company v. Barber, 5 Ohio State Rep., 557. These decisions were revised and held not to apply in any instances than those where there existed at the time of the injury, a .subordination of authority, and thfe superior, by his negligence or mismanagement, caused thfe injury. That was the case of a conductor, complaining of injury on the train under his own control. See also Louisville and Nashville R. R. Co., ads. Collins, 2 Duvall, 114.

In the case under consideration, the running off of the train, which precipitated the plaintiff, who was the locomotive engineer, to the ground, and injuring him, was caused by an accumulation of sand on the road-bed, or the spreading of rails by their separation from rotten cross-ties. Just before the accident, there had been a heavy fall of rain; the night was dark and stormy. The place was a deep cut, known to be subject to sand slides and washing from the adjacent banks, from heavy rains. There was evidence tending to show that the casualty may have been caused by accumulation of sand on the track; or that it may have been caused by the rotten cross-ties ; or both may have contributed to it. If the misfortune was attributable to the unsafe condition of the road, from defective and rotten cross-ties, the question arises, What is the responsibility of the company ? The road is under a duty, imposed by its charter, to “ repair” its road; to keep it in condition to subserve the purposes for which it was constructed. It is under a duty also to select competent agents to discharge the several kinds of service committed to them. It must bestow ordinary care and diligence in the repair of the road, and in selecting its agents. Where the law, or thfe nature of a business, devolves a duty upon a party, the fair presumption is that he performs it. If an action is grounded upon negligence or non-performance of it, the plaintiff must show the default. If the injury result from the negligence or misconduct of an agent of a railroad company, liability on the company can be imposed by showing incompetency of the agent, and the want of reasonable care and prudence in his selection, or his continuance in place after notice of his unfitness.

A railroad company, like a natural individual, is responsible for injuries proceeding from its own negligence or misconduct. It was the duty of the section boss and road master to keep the road in suitable repair. If these agents negligently performed their duty, and the company were advised of it, then the default became its own, and it must take the consequences.

Who are “ fellow-servants ” within the rule ? Those who are co-working in the same common enterprise, under the same master and compensated by him. Difference in wages or work do not affect the question, if the general business is the same. The conductor, engineer, brakesman, and firemen are fellow-servants with the same employes on every other train. So they are with the switch tenders, the track repairer, or watcher of trains to give signals, is in a common employment with the engineer, conductor and firemen of a train. Hard v. Vermont and Canada R. R. Co., 32 Rev., 472; Wilson v. Madison, etc., R. R. Co., 18 Ind., 226; Poston v. R. R. Co., 4 Jones (N. C.), 246; Slattery v. R. R. Co., 23 Ind. Rep., 81; Coon v. R. R. Co., 5 N. Y., 492.

It was pressed at the argument, that art. 43, Code 1857, p. 299, furnished a statutory rule, as respects negligence, which withdrew the case from the general rule drawn from the analogies of the common law. That statute is declaratory of the common law, as to railroad companies’ responsibilities to the public. The negligence of any of its agents or servants, whereby injury is inflicted upon or wrong done to a “ stranger,” gives him a cause of action against the company. Without indulging in a philosophical criticism of the language, so as to determine its meaning, we are content to accept the construction put upon it in other States, where a similar statute obtains; that is, that it does not embrace, nor was it so intended, the agents and employes; but they stand upon their common law rights. Sullivan v. M. and Mo. R, R. Co., 11 Iowa, 421; Carle v. B. and C. and R. R. Co., 43 Maine, 269. In the case reported in 11th Iowa, the court held, that where different persons are employed by the same principal in a common enterprise, no action can be brought by them against the employe, on account of injuries, sustained by one, through the negligence of another employe. After that decision (in 1862), the Legislature passed a statute making the railroad companies liable for all damages sustained by “ any person,” in consequence of the neglect of its agent or its managers, including employes of the company, In the later case of Hunt v. C. and N. W. Railroad Co., 26 Iowa, 370 (in 1868), the court ruled, that the express words “ including employes ” gave them the action, like a stranger, which they did not have before.

The theory of law, upon Which the circuit court proceeded, did not accord with what we have ascertained from an examination of the cases, to be the rule in England, and in the great majority of the States. It is a matter of great moment, not to be overlooked by this court, that in view of the ramification of the railroad system, through the States, and the' homogeneity of interest common in all the States, that the rules of law, pertaining to their duties and responsibilities, should be as nearly uniform as possible.

The first instruction assumes that the plaintiffs can recover if the injury may be referred to- the carelessness of other agents and servants of the defendant, employed in a department distinct from that in which the plaintiff was engaged, and over whom he had no control.

If the mischief may be attributed to the section boss and road master charged with the duty of repairing the road-bed, and giving to trains signals of danger, because of a failure to perform them, these servants not being under the plaintiff’s control, then the instruction is, that the recovery may be had. In Coon v. R. R. Co., 1 Seld. Rep., 492. The plaintiff’s business Was to repair the road and inspect the track; he Was injured by a passing train; held that he could not maintain the action, because of the negligence of those running the train. This ease seems to directly negative the proposition contained in the instruction. In Ohio, where the distinction and classification of the employes was first made, as affecting the responsibility of the company, it was held (in 1858), in Whatan v. R. R. Co., 8 Ohio, St., 253, that a laborer engaged in repairing the road, could not recover for an inj ury sustained, in consequence of the carelessness of a fireman on the locomotive. The distinction was pressed at the bar, that the respective servants were engaged in distinct departments of duty; the court, referring to the antecedent cases, declined either to adopt or reject the distinction, but placed their judgment on the ground that both servants were in such relation to each other, as brought them within the general rule. Also Hayes v. Western R. R. Co., 3 Cush., 270, Albro v. Agawam Canal Co., 6 Cush., 75 ; Wyman v. Jay, 5 Exch., 352.

The third instruction rests upon the same erroneous conception of the law as the first. It declares that the risks taken by the locomotive engineer does not extend to the negligence of employes in other departments. See Bola v. N. Y. Central R. R. Co., 18 N. Y., 432; Hutchinson v. York and New Castle R. R. Co., 5 Exch. Rep., 343; Abram v. Reynolds, 5 Hurt & Norris, 142 ; Wright v. N. Y. Gen. R. R. Co. 18 New York, 565.

The court refused instructions requested by the defendants, the converse of those granted for the plaintiff, such as the twelfth, which was error. The tenth instruction asked by defendant ought to have been given.

The third and fifth charges asked by the defendant, propounded the law correctly, as to the degree of care incumbent on the company in the selection of the servants therein named; and, taken in connection with the tenth prayer for instruction, Which states, “if they become incompetent afterwards, such incompetency must be brought to the knowledge of the defendant, ought not to have been given, and could not have misled the jury. The three requests, taken together, affirm that if the defendant exerted due care in making the appointments, and afterwards, they, or either, became incompetent, and defendant Was aware of it, then if the plaintiff was injured because of their neglect, the defendant is liable. The company then becomes derelict in its duty, and must be held to account for all the consequences. If the railroad company continued, knowingly, an incompetent servant in its service, especially in a position of importance, it should be required to assume all the consequences that may be fairly traced to his incompetency. And since each employe takes the risks of the negligence of every other one, it is-the plain duty of any one of them to give information to the employer, of the incompetency or unfitness of a fellow-servant, and if he is aware of the negligence or incompetency of a particular employe, and withholds such information, and suffers by his negligence, he ought to be precluded from recovery from the master. The ultimate foundation of the rule of the non-liability of the master for the negligence of his servant, is upon policy. Whether the safety of the agents and employes of a vast enterprise like a railroad company would not better be consulted, by making it the interest and duty of each one to observe the conduct of the other, so as to be associated, as far as practicable, with the prudent and cautious. Brought, as they are, in constant contact with their fellows, they have better opportunities to know and judge of the qualifications and fitness of their associates in the common business, than the defendant. It must also be considered whether vast interests of railroad transportations, of manufactures, of mining, and navigation could be, for the public, as promptly and safely conducted if there was no sort of responsibility resting on the employes and operatives for each other’s conduct and good behavior. They have also the further safeguard that the corporation must use due care and diligence in the selection of its agents; and upon discovery of their unfaithfulness to duty, must promptly remove them. Of delinquencies, the employes have equal, perhaps better, means of knowledge than the company. Railroad companies are under the, strictest liabilities as carriers of freight; nothing excuses but the act of God or the public enemy. They must exercise all possible care for the safe carriage of passengers. These stringent duties have been put upon them from motives of policy. They will net be heard to excuse themselves because their agents have been unfaithful or careless. The experience of the most active commercial and manufacturing countries of Europe, and of nearly all the commercial, mining and manufacturing States of the Union, after a trial of over thirty years, concur in the wisdom and expediency of the application of the rule to the employes of railroad corporations. It might, in individual instances perhaps, work hardship ; hence the courts of two of the States have attempted to limit its operation. If seems to us, then, there are intrinsic difficulties in the way of a classification of a safe and uniform application. There are doubtless instances of employes, as suggested in C. & A. R. R. C. v. Murray, 53 Ill., 336, so separated from the other employes, so disconnected in duty, that such a one ought to be exempted out of it. Nor, on ihe other hand, would we undertake to say, in advance, that there might not be officers clothed with such special authority, and filling such special relations to the company,, as, that the corporation should be esteemed as present with them, commanding and acting, so that it may be made amenable to subordinate servants. This is not a case of that sort, but we throw out the suggestion, but without committal one way or the other, in order to prevent the views here expressed from being carried beyond the range of their fair applicability. There are errors, as we have indicated, in the granting and refusal o instructions. Wherefore the judgment is reversed, caus remanded, and a venire facias awarded.'