New York, Chicago & St. Louis Rd. v. Lambright

3 Ohio Cir. Dec. 213

• Court: Seneca Circuit Court
• Decided: May 15, 1891
• Status: Published

Opinion

BEER, J.

The plaintiff below appears to have framed his petition -with the intention of stating a cause of action under sec. 1 of an act entitled “An act for the protection of railroad employes,” passed March 23, 1888; 85 O. L. 105.

Section 1 of that act requires the blocking or filling of guard rails by railroad companies, so as to prevent the feet of their employes from being caught therein Section 2 provides for punishment by fine upon failure to comply with the requirements of section 1.

It is contended by the railroad company that the remedy by fine is exclusive. We think this is not tenable.

When a statute imposes a duty for the benefit of the public, or for the benefit of individuals, an individual injured may maintain an action fqr a breach of the duty. Cooley on Torts, 654, 657, 658; Sedgwick on Stat. and Con. Law, 77; 5 Mass., 514, 3 E. & B. Q. B., 402. 2 Wm. Bl., 906.

The railroad company employed a competent servant to attend to filling and blocking the frogs and guard rails in its track. It contends that the neglect to fill or block the guard rail was the neglect of this servant, and that he was the fellow servant of Lambright engaged in a common employment with him, and that, hence, he cannot recover.

A corporation acts through agents and servants. In some cases the acts of a servant are, as to his fellow servants, the acts of the master. When a servant is discharging duties that the master owes to his servants, his acts are, in law. the acts of the master. 81 N. Y., 516; 37 Am. Rep., 521; 84 N. Y., 77; Wood’s Master and Servant, 885.

Williamson, McCauley & Weller, for plaintiff in error. Geo. E. Seney, for defendant in error.

The law requires the railroad company to fill or block the guard rails on its tracks. That duty can only be performed by a servant, and if he performs it negligently, his negligence is the negligence of the railroad company. If not, against whom is a fine to be assessed for the failure to perform, or the negligent performance of the duty? The statute says ‘‘every corporation shall fill or block," and "any railroad corporation failing to comply with the provisions of this act shall be punished by a fine.” The duty is imposed upon the company, and the company is to be punished for a failure to perform the duty. While the company may, and must employ a servant to perform the duty, it must see that it is properly performed. The delict of the servant is the delict of the master. 81 Va., 71; 105 N. Y., 159; 111 Ind., 51, 212; 1 West. Rep., 288.

The judgment was reversed on other grounds.