Connecticut. Supreme Court of Errors.

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after they had been set up, were not fellow-servants with
those whose duty it was to keep them in repair. What was
said on this point was also unnecessary, for the case was
decided against the plaintiff on the ground of her contribu-
tory negligence. The case, however, does not apply to the
case at bar, for here the question does not arise between the
spinner using the machine and those who were to prepare
it for his use, but between those who were engaged in the
common duty of preparing the machinery for use by the
spinners. It seems to us that the case of Murphy v.
R. R, Co.^ 88 N. York, 146, beiore referred to, is exactly in
point, and is much nearer to the case at bar than either of
the cases cited in the court below. We submit, however,
that the better decisions in England and in this country lay
down a much more reasonable rule of law than either of
these cases, if they mean what the court below claims to be
their effect. It is well settled that the duty of a master
towards his servant is to exercise reasonable care in pro-
viding competent fellow-servants to work with him, and
also to provide suitable materials and appliances for him to
work with. All will agree on that. The question on which
much controversy has arisen is, what are the limits of that
•reasonable care? It will also be agreed that no master is
responsible to a servant for negligence of a fellow-servant,
but much controversy has also arisen as to who were fellow-
servants. The two questions have in most cases been con-
sidered together, and so combined as to render it almost
impossible to treat them separately; and certain general
expressions applied to cases involving one state of things
have been applied to cases involving a very different state

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WUson V, Willlmantic Linen Co.

of things. The best statement of the whole question is to
be found in Wood on Master & Servant, § 411 : " What-
ever might be said as to the implied duty of a master
engaged in a small business, who, at the time when the con-
tract of service was entered into, personally took charge of
all departments of the business, it certainly could not be
held in the case of corporations, which necessarily act
through agents, or of large establishments, that the servant
knows or ought to know at the time of his employment are
operated through agents, that there is an implied obligation
on the master's part to personally supervise and oversee his
business ; but, on the contrary, the more natural and legiti-
mate inference is that the servant took upon himself all the
risks incident to the business, conducted, as he knew or
ought to have known, by co-servants, and such is the gener-
ally, although not universally, accepted rule of law. There
can be no good reason for holding a master liable for injuries
resulting from defective machinery manufactured by work-
men in his employ who havetbeen selected with reasonable
regard to their competency and fitness for the business,
when he is not liable if the same machinery is purchased by
a competent agent, of a third person by whom it was manu-
factured. In either case the question is, whether the mas-
ter is guilty of such negligence in the employment of agents
that it can be fairly said he is in fault; whether he has
failed to act with such ordinary care and regard for the
safety of his employees as a man of ordinary prudence
would have exercised under similar circumstances ; and if
he is not at fault in these respects, there is no rule of law
that will hold him liable to his servants for injuries that
they may sustain from defects in the instrumentalities of .
the business, whether they were supplied by third persons
or were manufactured by his own workmen." The leading
case sustaining this view of the law is Wilson v. Merrtfy
before cited, where the whole subject is very fully con-
sidered. In that case, the owners of a coal pit had
employed a sub-manager, and funiished him with suitable
workmen and materials to work the pit, and provide

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JANUARY. TERM, 1888. 468

Wilson o. Willbnantic Liaen Go.

suitable ventilation. He built a scaffold which so
obstructed the ventilation of the pit a? to cause an
explosion of coal damp, which injured a workman em-
ployed in cutting out coal ; and the House of Lords held
that the owners were not liable, on the ground that the
employment of a suitable person and furnishing him witii
suitable materials for having the necessary work done, was
the exercise of reasonable care : that such sub-manager was
a fellow-servant with the workmen, and his negligence was
that of a fellow-servant. This case, and the principles
therein laid down, have been substantially followed and
approved of in the numerous cases in this country, many of
which have already been referred to. To those already cited
we would add Warner v. Erie R. R. Co., 39 N. York, 468, and
Hough V. Railway Co., 100 U. S. Reps., 213. There is a
class of cases, especially in some of the western states,
where it has been held that all the servants of a corporation
who are engaged in the purchasing, making and repair of
machinery, to be used by another set of servants, are not fel-
low-servants with the latter, but really are the representatives
of the master. In some of these cases it seems to be taken
for granted that the master is bound, not to exercise reason-
able care in furnishing proper appliances, but to see that
they are furnished at all events, that is to in^sure the servants
against injury from improper appliances. The leading case
in this class is Chicago ^ North Western R. R. Co. v. Swett,
45 111., 197 ; and there are similar cases in Missouri, Wis-
consin, Iowa, and other western states. These decisions
were based upon expressions made by the judges who gave
opinions in certain cases in Massachusetts and New York,
noticeably Ford v. Fitchburg R. R. Co., 110 Mass., 240, and
Flike V. Bost. ^ Alb. R. R. Co., 63 N. York, 649. The
former case, however, is explained and shown not to be
susceptible of this construction, in Holden v. Fitchburg R.
R. Co., 129 Mass., 268, and the latter is similarly explained
in Slater v. Jewett, 86 N. York, 61. In other cases it is
assumed, especially in cases of corporations which must act
by agents, that every agent employed in furnishing or

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Wilson V. Willimantic Linen Co.

repairing the appliances of labor, so represents the master
that his negligence is the negligence of the master. One
reason for these decisions is to be found in the claim some-
times set up in behalf of corporations, that aU the directors
had to do was to appoint a suitable manager or managers,
and then having exercised due care in their appointment,
the corporation was not liable for any negligence on their
part ; and in opposing this unreasonable claim these courts
hftve been led too far into the other extreme. The true rule
lies, as is usual, between the two extremes. The reasonable
view sustained by the authorities is this : The master can-
not rid himself of the duty of exercising reasonable care
by transferring the whole matter of furnishing proper appli-
ances to another. In that case the negligence of that other
is the negligence of the master. As is well said in Malone
V. Hathaway^ 64 N. York, 12, "Corporations necessarily
acting through agents, those having the superintendence of
various departments with delegated authority to employ
and discharge laborers and employees, provide materials
and machinery for the service of the corporation, and gen-
erally direct and control under general powers and instruc-
tions from the directors, may well be regarded as the repre-
sentatives of the corporation, charged with the performance
of its duty, exercising the discretion ordinarily exercised by
principals, and within the limits of the delegated authority
the acting principal." So in Souffh v. Railway Co,^ 100 U. S.
Reps., 218, it is said : " Those at least in the organization
of the corporation who are invested with eontrolling or
superior authority in that regard represent its legal person-
ality, their negligence from which injury results is the neg-
ligence of the corporation." Shearman & Redf. on Neg^
§ 102; Wharton on Neg., § 229; Mullan v. Phila. Steam-
skip Co,^ 78 Penn. St., 25. The better cases confine the
liability of the master for the negligence of agents to those
who have "controlling and supreme authority" over
special departments of business, who in respect to those
departments are the alter ego of the master.

The cases that hold that a person occupying the place

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JANUARY TERM, 1888. 466

Wilson V. WUUmantic Linen Co.

that the overseer of repairs did here, is not a representative
of the master, but a fellow-servant of the plaintiff, are very
numerous. Albro v. Agawam Canal Co.^ (jsupra^ ; Kelley v.
Norcro9%, 121 Mass., 608 ; ZeigUr v. Day, 123 id., 162 ; SmUh
V. Lowell Mavf. Co., 124 id., 114 ; Killea v. Faxon, 125 id.,
486; Lawler v. Androscoggin iJ. jB. Co,, 62 Maine, 468;
Homer v. Illinois Central JB. M. Co., 16 111., 660 ; Crispin v.
BabhiU, 81 N. York, 616; Mc Cosher v. Long Island R. R.
Co., 84 id., 77. He was merely one of the many inferior
servants of the corporation, not having sole charge of ady
department of the business which was under his sole control,
and in regard to which he represented the corporation,
except as any servant who was directed to do any act repre-
sented the corporation. The judge below says : — " He was
ordered by the superintendent to make the collars and put
them on. No one else was authorized or empowered for the
purpose and he alone was relied dpon by the defendants to
perform that duty." The same might be said of any servant
who was ordered to perform any duty. The mere fact that
he was the servant directed to do this act did not make him
the alter ego of the master, or give him the " controlling or
superior authority," which the cases require to make his
negligence the negligence of the company itself. Such a
rule, instead of requiring reasonable care from the corpora-
tion that proper appliances were furnished, would make it
guarantee that proper appliances were furnished, which we
have shown is not the law. So as to the further deduction
of the judge« that the plaintiff and the overseer of repairs
were not fellow-servants; where he makes a distinction
between those servants who "provide and put up the
machinery, shafting or implements, and the servant who
afterwards runs them for the purpose for which they are
provided and put up." The better cases, we think, say
no such distinction exists. But if it does, the case of
Murphy V. Bost. ^ Alb. R. R. Co., before cited, shows
that that principle is not applicable to this case. The
person who set up the shafting, the person who set up
the frame, and the person who connected them together so

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Wilson o. WlUimantic Linen Go.

that the spinners could use the xnachineiy, were all three
engaged on the common business of preparing the machinery
for use by others. It could all have been done by one
person, or different persons could do different parts of the
necessary labor. They had a common object, ike preparing
the machinery for operation, for the purpose of being used
by the spinners to make thread. It would be an unreason-
able refinement to say that the workman who put up the
main shaft, the one who put up tiie countershaft, the one
who put on the pulleys, the one who set up the spinning
frames, and the one who put on the belts, were all in charge
of separate departments of labor under the corporation,
and therefore were not fellow-servants, merely because they
each did a different one of the various operations necessary
to prepare the spinning frame for use

J, L. Hunter and E. B. Swmner^ for the appellee

Park, C. J. (After stating the facts.) Upon these
facts the question is, do they establish negligence in the
defendants, which caused the injury to the plaintiff? If
the injury was produced by the combined negligence of
both parties the plaintiff cannot recover. He is bound to
show that the injury was caused by the negligence of the
defendants, which he cannot do if his own negligence con-
tributed to its production. Hence, where a question is
made with regard to such contributory negligence of a
plaintiff, it is convenient to consider separately the facts
with regard to the negligence of each party.

Were the defendants guilty of negligence ? The control-
ing facts of the case upon this point are, that the counter-
shaft was constructed and left in an unfit and dangerous
condition for use ; that it was put up in the defendants' mill,
together with other shafting, in order to enlarge the manu-
facturing capacity of their works, and was run for the first
time on the day when the accident occurred; that the
superintendent had charge of the construction and use of
all the machinery of the mills, both new and old ; that he

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Wll0(m V. Willimantlc Linen Co.

superintended the construction of the shaft in question, and

had knowledge of its dangerous condition ; that he con-
tented himself with giving orders to the overseer of repairs
to put collars upon the shaft and make it safe ; that after
machines were made ready for the workmen in the new
department, he gave directions to the overseer of the room
to make the shaft ready for communicating power to the
new machines and run the same ; and that as soon as power
was applied the shaft fell and the plaintiff was injured.
These are the principal facts in this part of the case^ and
upon them rests the question of the defendants' negligence.

The plaintiff entered the defendants' service as an em-
ployee in their manufacturing establishment; and we are
first to consider what duties they assumed regarding him as
their servant, and what risks he assumed in the service.
The books are full of oases on the subject, but, although
they are numerous, they generally agree that the employer
is bound to exercise reasonable and proper care to furnish
the employee with reasonably safe machinery and tools,
and is responsible for neglect in this particular which
causes injury to the latter. All ordinary risks incident to
the service, including those resulting from the carelessness
of fellow-servants, are assumed by the employee, and for
these the employer is not responsible.

In VirrA v. Fitchburg K K Co^ 110 Mass., 240, the court
gay: — ^''The rule of law which exempts the master from
responsibility to the servant for injuries received from the
ordinary risks of his employment, including the negligence
of his fellow-servants, does not excuse the exercise of
ordinary care in supplying and maintaining proper instru-
mentalities for the performance of the work required. One
who enters the employment of another has a right to count
on this duty, and is not required to assume the risks of the
master's negligence in this respect. The fact that it is a
duty which must always be discharged, where the employer
is a corporation, by officers and agents, does not relieve the
corporation from this obligation. The agents who are
charged with the duty of supplying safe machinery are not.

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Wilson V. WUlimantic Linen Co.

in the true sense of the rule relied on, to be regarded as
fellow-servants of those who are engaged in operating it.
They are charged with the master's duty to his servant.
They are employed in distinct and independent departments
of service, and there is no difficulty in distinguishing them,
even when the same person renders service by turns in
each, as the convenience of the employer may require."

This was said in a case where an engineer sought to
recover damages for an injury he received from the explo-
sion of his engine which was out of repair, and the defence
was that the want of repair was owing to the negligence of
fellow-servants in the department of repairs.

Wharton, in his work on Negligence, § 211, says : — " The
question is that of duty ; and without making the unneces-
sary and inadequate assumption of implied warranty, it is
sufficient for the purposes of justice to assert that it is the
duty of an employer inviting employees to use his struc-
tures and machinery, to use proper care and diligence to
make such structures and machinery fit for use." In § 212
he says: — '*At the same time we must remember that
where a master personally, or through his representatives,
exercises due care in the purchase or construction of build-
ings and machinery and in their repair, he cannot be made
liable for injuries which arise from casualties against which
such care would not protect. It is otherwise if there be a
lack in such care, either by himself or his representatives.
The duty of repairing is his own, and, as we shall here-
after see, the better opinion is that he is directly liable for
the negligence of agents when acting in this respect in his
behalf. If the master knows, or in the exercise of due
care might have known, that his structures or engines were
insufficient, either at the time of procuring them, or at any
subsequent time, he fails in his duty." In § 282 he says: —
*^It is important to remember that the master is liable
when the negligence of the offending servant was as to a
duty assumed by the master as to working place and
machinery. A master, as we have already seen, is bound,
when employing a servant, to provide for the servant a safe

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JANUARY TERM, 1888. 469

WilBon V. Willimantic Linen Co.

working place and machinery. It may be that the persons
by whom buildings and machinery are constructed are ser-
vants of the common master, but this does not relieve him
of his obligation to make buildings and machinery adequate
for working use. Were it otherwise, the duty before us,
one of the most important of those owed by capital to
labor, could be avoided by the capitalist employing only
his own servants in the coiifitruction of his buildings and
machinery. In point of fact this is the case in most great
industrial agencies ; but in no case has this been held to
relieve the master from the duty of furnishing to his em-
ployees material, machinery and structures adequately safe
for their work. He does not guarantee that either build-
ing, machinery, or organization shall be perfect ; but he is
bound by the rule sic lUere tuo ub alienum non IcedaSy to use
such diligence and care in this relation as is usual with
good business men in his line. It is not enough for him to
employ competent workmen to construct his apparatus. If
an expert, he must inspect the work; and if not, he must
employ another competent person as expert for the purpose.
If such, however, is his duty, he must not only see that
the structure he provides is suitable at the outset, but that
it is kept in repair, and the repairer's negligence in this
respect is the master's negligence." Pierce, in his work on
Railroads, § 870, says : — '* The company, like any master,
is under an obligation to its servants to use reasonable care
to provide and maintain a safe road-bed, and suitable
machinery, engines, cars, and other appointments of the
railroad, and is liable to them for injuries resulting from
defects which it knew of, or ought to have known of, and
could have prevented by the exercise of such care ; and it
is under the same duty and liability to maintain these in-
strumentalities in proper condition. The servant assumes
the natural risks of his employment, but not those which
the wrongful act of the company has added."

In Bartonshill v. Heid^ 8 Macq. H. L. Cases, 266, Lord
Cranworth said "that where a master employs his
servant in a work of danger he is bound to exercise due

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Wilson V, WUliniABtic LiaeB Co.

care in order to have his tackle and machinery in a safe and
proper condition, so as to protect the servant against im-
necessary risks." In Railroad Co. v. Fort, 17 Wall., 65S,
the court, in commenting on the risks which servants are
presumed to have assumed by the contract of service, said :
— ** But this presumption cannot arise where the risk is not
within the contract of service, and the servant had no
reason to believe he would have to encounter it. If it were
otherwise principals would be released from all obligations
to make reparation to an employee in a subordinate position
for any injury caused by the wrongful conduct of the persons
placed over him, whether they were fellow-servants in the
same common service or not. Such a doctrine would be
subversive of all just ideas of the obligations arising out of
the contract of service, and withdraw all protection from
the subordinate employees of railroad corporations. These
corporations, instead of being required to conduct their
business so as not to endanger life, would, so far as this class
of persons is concerned, be relieved of all pecuniary respon-
sibility in case they failed to do it. A doctrine that leads
to such results is unsupported by reason, and cannot receive
our sanction." In Mough v. Railway Co.^ 100 U. S. Reps.,
213, the court said : — " A railroad corporation may be con-
trolled by competent, watchful and prudent directors, who
exercise the greatest caution in the selection of a superin-
tendent or general manager, under whose supervision and
orders its affairs and business, in all of its departments, are
conducted. The latter, in turn, may observe the same
caution in the appointment of suboi*dinates at the head of
the several branches or departments of the company's service.
But the obligation still remains to provide and maintain in
suitable condition the machinery and apparatus to be used
by its employees — an obligation the more important, and the
degree of diligence in its performance the greater, in propor-
tion to the dangers which may be encountered. Those, at
least, in the organization of the corporation, who are invested
with controlling or superior authority in that regard, repre-
sent its legal personality; their negligence, from which

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JANUARY TERM, 1883. 461

Wilson V. Willimantic Linen Co.

injury results, is the negligence of the corporation. The
latter cannot, in respect of such matters, interpose between
it and the servant who has been injured without fault on
his part, the personal responsibility of an agent, who in
exercising the master's authority has violated the duty he
owes, as well to the servant as to the corporation. To guard
against misapplication of these principles we should say that
the corporation is not to be held as guaranteeing or warrant-
ing the absolute safety, under all circumstances, or the per-
fection in all of its parts, of the machinery or apparatus
which may be provided for the use of employees. Its duty in
that respect to its employees is discharged when, but only
when, its agents, whose business it is to supply such instru-
mentalities, exercise due care as well in their purchase origi-
nally as in keeping and maintaining them in such condition
as to be reasonably and adequately safe for use by em-

This was said in a case where the plaintiflf's decedent, an
engineer upon the defendants' railroad, was killed while
in the performance of his duty fti the defendants' employ-
ment, by reason of the defective condition of his engine ;
which defective condition was owing to the negligence of
their master-mechanic and of the foreman in their repair
department, who were competent and proper persons for
their positions. The defence in the case was, in part, the
same as it is here, namely, that due and proper care had
been exercised in the purchase of the engine and in the
selection of the officers charged with the duty of keeping it
in proper repair.

The case of Davis v. Vermont Central R. B. Co.^ 65 Verm.,
(not yet out, this case appearing in a magazine,) is a very
recent and important one upon this subject. The marginal
note is as follows : — " In an action on behalf of a fireman of
a railroad company, killed by the washing out of a culvert,
the negligence of the company's bridge-builder in construct-
ing, and of the road-master in repairing the culvert, is
attributable to the company." It was conceded in the case
that the bridge-builder and road-master were ordinarily

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Wilson V. Willimantic Linen Co.

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 41 of 61)