Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

. (page 132 of 165)
Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 132 of 165)
Font size
QR-code for this ebook


order, though he had power to em-
ploy and discharge men) ; O'Dowd
v. Burnham, 19 Pa. Super. Ct. 464;
Larich v. Moies, 18 R. I. 513; s. c. 28
Atl. Rep. 661 (plaintiff was injured
by caving in of a sand-bank and
had been warned of danger) ; Di
Marcho v. Builders' Iron Foundry,
18 R. I. 514; s. c. 28 Atl. Rep. 661
(where the servant inflicting the in-
Jury is not discharging a duty of
the master) ; Frawley v. Sheldon,
20 R. I. 258; s. c. 3 Am. Neg. Rep.
734; 38 Atl. Rep. 370; Knox v.
Southern R. Co., 101 Tenn. 375; s.
c. 12 Am. & Eng. R. Cas. (N. S.)
684; 47 S. W. Rep. 491 ("boss
wiper" who is the foreman of a
gang of wipers employed by a rail-
road company to wipe its locomo-
tives, and directs them when to
work and what to do, but who has
no power to employ or discharge
them); Louisville &c. R. Co. v.
Lahr, 86 Tenn. 335; s. c. 6 S. W.
Rep. 663 (distinguishing between
personal and official negligence) ;
Allen v. Goodwin, 92 Tenn. 385; s.
c. 21 S. W. Rep. 760 (must not only
have been foreman in fact, but
must have been such in the sense
of being a vice-principal — not
enough that the injured employe"
believed him to have been such);
St. Louis &c. R. Co. v. Lemon, 83
Tex. 143; s. c. 18 S. W. Rep. 331
(temporary foreman left in charge

958



of the work during the absence of
the regular foreman, he not having
full control of the work with power
to employ and discharge men);
Riley v. Galveston City R. Co., 13
Tex. Civ. App. 247; s. c. 35 S. W.
Rep. 826 (foreman of a gang who
has not authority to discharge the
men) ; Allen v. Logan City, 10 Utah
279; s. c. 37 Pac. Rep. 496 (employs
engaged in work at a gravel-bank
is a fellow servant with another
employ^ engaged in the same gen-
eral character of work, who is left
in charge by the vice-principal of
the employer) ; Southern R. Co. v.
Mauzy, 98 Va. 692; s. c. 2 Va. Sup.'
Ct. Rep. 575; 37 S. B. Rep. 285
(although the foreman possessed
the power to hire and discharge
hands, but was helping injured em-
ploy 6) ; Moore Lime Co. v. Richard-
son, 95 Va. 326; s. c. 64 Am. St. Rep.
785; 28 S. E. Rep. 334 (member of
a gang of men engaged in quarry-
ing lime-stone and burning lime,
who does the same work as other
members of the gang, and receives
the same pay, is a fellow servant
with them, though he' acts as
leader or foreman in the work of
moving cars to the lime-kilns);
Garrow v. Miller, 72 Vt. 284; s. c. 47
Atl. Rep. 1087; Lambert v. Missisquoi
Pulp Co., 72 Vt. 278; s. c. 47 Atl. Rep.
1085; Say ward v. Carlson, 1 Wash.
29; s. c. 23 Pac. Rep. 830 (foreman
of a mill is a fellow servant of a per-
son working in the mill so far as
the work of operating the mill is
concerned) ; Hoth v. Peters, 55 Wis.
405; Johnson v. Ashland Water Co.,
77 Wis. 51; s. c. 45 N. W. Rep. 807
(foreman in a water- works com-
pany, having exclusive charge of
calking and laying pipes in Jhe ab-
sence of the general superintendent
is a fellow servant of another em-
ploye* injured by a pipe rolling off
blocks while assisting the foreman,
who called him to help in raising
one of the joints to a level posi-
tion) ; Paschel v. Chicago &c. R.
Co., 62 Wis. 338 (foreman subordi-
nate to a master carpenter, who
alone has power to employ and dis-
charge laborers, and who has
charge of gangs and directs the
foreman); Kliegel v. Weisel Ac.
Man. Co., 84 Wis. 148; s. c. 53 N.
W. Rep. 1119 (foreman in a ma-



Digitized by



Google



WHO ARE AND WHO ARE NOT FELLOW SERVANTS. [2d Ed.

duties, performing them under the direction of the master, the latter
retaining general control and supervision. 8 A true expression of the
nile seems to be, that, in order to charge, the master, the superior
servant must so far stand in the place of the master as to be charged
with the performance of duties toward the inferior servant, which,
under the law, the master owes to such servant, 9 as has been more fully
shown in the preceding sections. 9 * But where the foreman is charged



chine-shop is a fellow servant, with
respect to the manner of bracing
a section of a heavy condenser, of
an employs assisting him ) ; Stutz
v. Armour, 84 Wis. 623; s. c. 54 N.
W. Rep. 1000; Wiskie v. Montello
Granite Co., Ill Wis. 443; s. c. 87
N. W. Rep. 461 (negligence of a
foreman of a quarry in permitting
powder to remain after the partial
explosion of a blast, whereby a
quarryman is injured, deemed the
negligence of a fellow servant) ;
McBride v. Union Pac. R. Co., 3
Wyo. 247; s. c. 21 Pac. Rep. 687
(when a "gang-boss" is a fellow
servant) ; Halverson v. Nisen, 3
Sawy. (U. S.) 562; Texas &c. R.
Co. v. Rogers, 57 Fed. Rep. 378;
s. c. 6 C. C. A. 403 (temporary
boss of a bridge-gang, assisting
in work at time employ^ is in-
jured); McDonald v. Buckley, 109
Fed. Rep. 290; s. c. 48 C. C. A. 372
(general foreman, while directing
operation of piledriver) ; Gaynon v.
Durkee, 87 Fed. Rep. 302; s. c. 52
U. S. App. 587; 31 C. C. A. 306
(when general foreman of railroad-
shops is a fellow servant with a
workman required to enter the
smoke-box of a locomotive to at-
tend to a leak in the boiler) ; Flip-
pin v. Kimball, 87 Fed. Rep. 258;
s. c. 11 Am. & Eng. R. Cas. (N. S.)
256; 59 U. S. App. 1; 31 C. C. A.'
282; Minneapolis v. Lundln, 58 Fed.
Rep. 525; s. c. 7 C. C. A. 344 (fore-
man of a gang of men engaged in
constructing a sewer under the su-
pervision of a general superintend-
ent, not a special vice-principal);
Reed v. Stockmeyer, 74 Fed. Rep.
186; s. c. 20 C. C. A. 381; 34 U.
S. App. 727 (foreman in a quarry,
although having power to hire
and discharge, men, is a fellow
servant with a laborer in such
quarry when engaged in the per-
formance pf manual labor therein) ;
Central R. Co. v. Keeg&n, 160
U. S. 259; s. c. 40 L. ed. 418;



16 Sup. Ct. Rep. 269 (foreman of
a drill-crew in a railroad yard,
who is a component part of the
crew and an active co-laborer in
the manual work of switching,
with the specific duty assigned to
him by the yardmaster of turning
the switches) ; Anderson v. Wins-
ton, 31 Fed. Rep. 528 (foreman of
a gang of laborers employed by a
contractor is 'a fellow servant of
one of the gang); Kelly v. Jutte
&c. Co., 98 Fed. Rep. 380 (foreman
under the direct orders of two su-
periors in the work not a vice-prin-
cipal) ; Coulson v. Leonard, 77 Fed.
Rep. 538 (the distinction between
a vice-principal and a foreman of
work stated; foreman with super-
vision oyer several men in erect-
ing the iron-work of a building,
subject to the supervision of a
member of the corporation employ-
ing them) ; Cleveland &c. R. Co. v.
Brown, 73 Fed. Rep. 970; s. c. 20
C. C. A. 147; 34 U. S. App. 756
(though having authority to em-
ploy and discharge men, and over-
see and direct them in the perform-
ance of their duties); The Louisi-
ana, 74 Fed. Rep. 748; s. c. 41 U.
S. App. 324; 21 C. C. A. 60 (leaving
open a hatchway by a squad of la-
borers under control of an under
foreman, or third foreman, deemed
the act of a fellow servant) ;
Murphy v. Smith, 19 C. B. (N. S.)
361; s. c. 12 L. T. (N. S.) 605; Al-
len v. New Gas Co., 1 Exch. Div.
251; Howells v. Landore Siemens
Steel Co., L. R. 10 Q. B. 62; s. c.
44 L. J. (Q. B.) 25; 32 L. J. (N. S.)
19; 23 Week. Rep. 335; 31 L. T.
(N. S.) 433; Gallagher v. Piper, 16
C. B. (N. S.) 669; Fairweather v.
Owen Sound Stone Quarry Co., 26
Ont. Rep. 604. Contra: Conway v.
Belfast &c. R. Co., I. R. 9 C. L. 498.

• Malone v. Hathaway, 64 N. Y. 5.

•Hofnagle v. New York &c. R.
Co., 55 N. Y. 608.

'a Ante, § 4923, et seq.

959



Digitized by



Google



4 Thomp. N"eg.] the fellow-servant doctrine.

with one of the primary duties of the master, as distinguished from
a mere act of service, then he becomes the master's representative,
and for his negligence in the performance of such duty the master
will be liable, — as where an assistant foreman having charge of the
machinery in a department of the work, is charged with the duty of
keeping it in a safe condition; 10 or where the foreman from whom
an inexperienced servant had received all her orders failed to warn
and instruct her, so that while sweeping the floor she was caught in
a cogwheel. 11

§ 4940. Jurisdictions in which a Superior Servant is Deemed a
Vice-Principal and Hot a Fellow Servant of the Servant Working Un-
der Him. — It is held in some jurisdictions that where one servant is
placed by his employer in a position of subordination, and subject
to the orders and control of another, and such inferior serv-
ant, without fault, and while in the discharge of his duties, is injured
by the negligence of the superior- servant, the master is liable for the
injury. The superior servant is deemed the vice-principal of the
master. 12 In these jurisdictions the so-called "fellow-servant doc-



"Dutzi v. Geisel, 23 Mo. App.
676; Bradley v. Chicago &c. R. Co.,
138 Mo. 293; s. c. 39 S. W. Rep.
763; 8 Am. & Eng. R. Cas. (N. S.)
728 (foreman in* charge of the re-
moval of an embankment — servant
injured by the fall of the overhang-
ing top of it while he was excavat-
ing at the base of it). It has been
held that where an employe^ in
obedience to the foreman's order,
and with the foreman's assistance,
is trying to loosen a stone from
the side of a car, caught there as
it is being raised by a derrick, and
the foreman negligently fails to
stop the derrick, whereby plaintiff
is injured, such negligence is that
of a vice-principal, for which the
master is liable: Dolese &c. Co. v.
Schultz, 101 111. App. 569.

11 O'Connor v. Golden Gate Woolen
Man. Co., 135 Cal. 537; s. c. 67
Pac. Rep. 966.

12 Highland Ave. Ac. R. Co. v. Du-
senberry, 98 Ala. 239; s. c. 13 South.
Rep. 308 (foreman in charge of
hand-car) ; Letter v. Kinnare, 68
111. App. 558; Libby v. Scherman,
146 111. 540; s. c. 34 N. E. Rep.
801; 37 Am. St. Rep. 191; Norton
v. Nadebok, 190 111. 590; s. c. 60 N.
E. Rep. 843; aff'g s. c. 92 111. App.

960



541 (though they are cooperating
in their work); Lalor v. Chicago
&c. R. Co., 52 111. 401; Rock Island
Sash &c. Works v Pohlman, 99 111.
App. 670; Consolidated ftc. Smelt-
ing &c. Co. v. Peterson, 8 Kan. App.
316; s. c. 55 Pac. Rep. 673; Kansas
City Car &c. Co. v. Sechrist, 59
Kan. 778; s. c. 54 Pac. Rep. 688;
Louisville &c. R. Co. v. Collins, 2
Duv. (Ky.) 114; s. c. 87 Am. Dec.
486; Faren v. Sellers, 39 La. An.
1011; s. c. 3 South. Rep. 362; 4 Am.
St Rep. 256 (direct representative
of the master, invested with his
own authority over inferior serv-
ants, not a fellow servant) ; Chi-
cago &c. R. Co. v. Bayfield, 37 Mich.
205 (conductor of construction-
train not a fellow servant with a
boy of seventeen employed as a
common laborer on the train — com-
pany liable to boy for Injuries in-
curred while acting as brakeman,
under orders of conductor) ; Slette
v. Great Northern R. Co., 53 Minn.
341; s. c. 55 N. W. Rep. 137 (negli-
gence of section-foreman in failing
to stop a hand-car and take it off
the track when he knew that a
train was following); Sullivan v.
Hannibal Ac. R. Co., 107 Mo. 66;
s. c. 17 S. W. Rep. 748; 28 Am. St



Digitized by



Google



WHO ARE AND WHO ABE NOT FELLOW SERVANTS. [2d Ed.

trine" is qualified so as to mean substantially the following: Where
different persons are employed by the same principal in a common
enterprise, and no control is given to one over the other, no action
can be sustained by them against their employer on account of any
injuries sustained by one agent through the negligence of another. 18

§ 4941. Further of the Status of Superior and Inferior Servants
under this Doctrine. — Applying this doctrine to railway service, it
has further been reasoned that if a railway company sees fit to in-
vest one of its servants with control or superior authority over an-



Rep. 388; Proctor v. Missouri &c.
R. Co., 42 Mo. App. 124 (boss di-
recting a gang in loading railway-
cars) ; Schroeder v. Chicago &c. R.
Co., 108 Mo. 322; s. c. 18 S. W. Rep.
1094 (foreman not a fellow serv-
ant) ; Cook v. Hannibal &c. R. Co.,
63 Mo. 397; Whalen v. Centenary
Church, 62 Mo. 226 (architect hav-
ing general charge of erection of
building and workman on the build-
ing); Turner v. Goldsboro Lumber
Co., 119 N. C. 387; s. c. 2 Chic. L.
J. Wkly. 32; 26 S. E. Rep. 23 (hold-
ing that an employe* of a corpora-
tion Who never comes in direct con-
tact with or receives orders or in-
structions from one higher in
power than the foreman, is justi-
fied in looking upon such foreman
as the representative of the em-
ployer) ; Lake Shore &c. R. Co. v.
La valley, 36 Ohio St. 221 (foreman
of railway repair-gang putting a
man to work under a car, failed to
take proper precautions for protect-
ing him, and company liable for his
failure so to do); Little Miami R.
Co. v. Stevens, 20 Ohio 415; Cleve-
land &c. R. Co. v. Keary, 3 Ohio St.
201; Berea Stone Co. v. Kraft. 31
Ohio St. 287, 292; s. c. 27 Am. Rep.
510; Toledo &c. St. R. Co. v. Yunker,
9 Ohio C. C. 262 (foreman of car-
barn of street-railway company and
car-driver); Louisville &c. R. Co.
v. Bowler, 9 Heisk. (Tenn.) 866
(section-boss and section-hands) ;
Nashville &c. R. Co. v. Jones, 9
Heisk. (Tenn.) 27 (where it was
held proper to instruct the jury
that "if they shall find that the in-
Jury was caused by the careless-
ness of an employ^ of the company,
occupying a superior and command-
ing position to that held by the de-

VOL. 4 THOMP. NBG.— 61



ceased, then the plaintiff will be en-
titled to recover." We collect
from opinion in this case that the
person killed was a railway fire-
man, and that the servant occupy-
ing a "superior and commanding
position to that held by the de-
ceased" was the engineer in charge
of the same engine) ; San Antonio
&c. R. Co. v. Weigers, 22 Tex. Civ.
App. 344; s. c. 54 S. W. Rep. 910
(evidence that the injured work-
man received and obeyed the orders
of the foreman sufficient to warrant
an instruction based on the hy-
pothesis of the foreman being a
vice-principal) ; Nix v. Texas Ac.
R. Co., 82 Tex. 473; s. c. 18 S. W.
Rep. 571; 27 Am. St. Rep. 897 (case
of an assistant foreman) ; Missouri ,
&c. R. Co. v. Hamilton (Tex Civ. '
App.), 30 S. W. Rep. 679 (no off.
rep.); Chicago &c. R. Co. v. Ross,
112 U. S. 377; Railroad Co. v. Fort,
17 Wall. (U. S.) 553; Mason v. Edi-
son Machine Works, 24 Blatchf. (U.
S.) 93; s. c. 28 Fed Rep. 228.

"Whaalan v. Mad River &c. R.
Co., 8 Ohio St. 249, 251. The rule
as quoted was pronounced as the re-
sult of the following cases: Little
Miami R. Co. v. Stevens, 20 Ohio
415; Cleveland Ac. R. Co. v. Keary,
3 Ohio St. 201. In one case the Su-
preme Court of Missouri decided
that a mere superintendent of work,
— an expression which cannot be
distinguished from a "foreman of
work," — was a vice-principal of a
railway company, and that his neg-
ligence in telling a teamster to
drive into a dangerous place, in
consequence of which the teamster
was injured, was the negligence of
the company: Cook v. Hannibal
&c. R. Co., 63 Mo. 397.

961



Digitized by



Google



4 Thomp. Neg.j the fellow-servant doctrine.

other servant with respect to any part of its business, the two are
not, with respect to such business, fellow servants within the
meaning of the rule; but in such a case the superior repre-
sents the corporation with respect to the one over whom he has
been placed. 14 This rule makes the power to command and to en-
force obedience one ,of the tests by which to determine whether the
relation is that of fellow servant or vice-.principal of master and
servant. 15 But it must be plain on reflection that mere superiority
of rank cannot furnish a sound test, but that the sound test is to con-
sider whether the act from which the injury proceeded was an act
of superintendence or authority, or an act of service, — or, as it has
been said, to consider whether the negligence was the personal neg-
ligence or the official negligence of the superior servant : the mean-
ing that the master is not liable to an inferior servant from the mere
fact that the injury to him resulted from the negligence of a servant
superior in rank to him unless the superior servant stood in the mas-
ter's place, so as to be charged in the particular matter with a duty
toward the inferior servant which in law the master owed to such
servant. 16 We may extract from the decision of another court the
doctrine that an employer is not liable for injuries resulting to an
employ^ from the negligence of a coemploy£ in the same general
service, although such coemploy6 is higher in authority than the one
receiving the injury, and has a limited control over him, but has no
authority to discharge other employes and is vested with no author-
ity in the general management of the business of the employer. 17



"Gravelle v. Minneapolis &c. R.
Co., 3 McCrary (U. S.) 362 (laborer
in railroad-yards and assistant yard-
master are not fellow servants).

30 Thus, where a brakeman on a
freight-train was injured through
the negligence of one who was con-
conductor and engineer of the train,
whose direction the brakeman was
bound to obey, it was held that he
was entitled to recover damages:
Cowles v. Richmond &c. R. Co., 84
N. C. 309; s. c. 37 Am. St Rep. 620.
So, where it appeared that the fore-
man and general superintendent of
a machine-shop hired a boy and told
him that he must do whatever K.,
another employe", directed him to
do; and K., being In charge of dan-
gerous machinery, negligently told
the boy to do a certain act in regard
to It, whereby he was injured, it
was held that K. and the boy were
not fellow servants as to that act,

962



and the boy could recover against
the principal: Dowling v. Allen,
74 Mo. 13; s. c. 41 Am. St. Rep. 298.
There is a plainly untenable deci-
sion to the effect that the foreman
in a railway-yard is the fellow serv-
ant of an engine-wiper in the yard,
and not the representative of the
company, in assuming to handle an
engine while a coupling is being
made at his direction by the wiper,
who sustains injuries by the fore-
man's alleged negligence, where it
is no part of his duty as foreman
to handle engines at such time, al-
though as such foreman he has au-
thority to employ and discharge
wipers: Gulf &c. R. Co. v. Schwabbe,
1 Tex. Civ. App. 573; s. c. 21 S. W.
Rep. 706.

"Allen v. Goodwin, 92 Tenn. 385;
s. c. 21 S. W. Rep. 760.

"Peterson v. Whitebreast Coal
ftc. Co., 50 Iowa 673.



Digitized by



Google



WHO ARE AND WHO ARE NOT FELLOW SERVANTS. [2d Ed.

According to a doctrine which seems to be peculiar to the State of
Kentucky, there can be no recovery in actions by servants against their
masters except in those cases in which the injury is caused by the gross
negligence of a superior servant in the same department or field of
labor with the injured employ6 ; 17a or through the ordinary negligence
of a superior servant, or the gross negligence of a servant of the same
grade or rank as the injured servant, in another department or field of
labor. 17b Where the injured servant and the servant inflicting the



1T a Cincinnati &c. R. Co. v. Palmer,
98 Ky. 382; s. c. 17 Ky. L. Rep. 998;
3 Am. ft Eng. Corp. Cas. (N. S.)
435; 33 S. W. Rep. 199 (porter
making a coupling under con-
ductor's orders could not recover
for injury caused by ordinary neg-
ligence of engineer in backing the
engine, but only for his gross neg-
ligence) ; Louisville &c. R. Co. v.
Brantley, 96 Ky. 297; s. c. 16 Ky. L.
Rep. 691; 28 S. W. Rep. 477 (ver-
dict stating that neglect of superior
servant in same department was
"ordinary," and awarding plaintiff
da mages, will be set aside ) ; Eastern
Kentucky R. Co. v. Powell, 17 Ky.
L. Rep. 1051; s. c. 33 S. W. Rep.
629 (no off. rep.) (Instruction that
plaintiff could recover for injury
caused by carelessness and negli-
gence «of defendant's servants, was
improper). It was held to be gross
negligence on the part of a conduct-
or, after directing an employ^ to go
between the cars and couple them,
to permit the train to be moved, and
the company was liable for the in-
juries thereby inflicted: Louisville
&c. R. Co. v. Mitchell, 87 Ky. 327;
s. c. 10 Ky. L. Rep. 211; 8 S. W.
Rep. 706. So, where the plaintiff,
under orders of a railroad yard-
master, was pushing against a lever
with his foot, and the yardmaster
gave the lev*er a sudden wrench or
jerk, thereby injuring the plaintiff,
it was held that the plaintiff might
recover if such act of the yard-
master were found to be grossly
negligent, — he being a superior
servant, and acting in the course of
his employment: Illinois Cent. R.
Co. v. Coleman, 22 Ky. L. Rep. 878;
s. c. 59 S. W. Rep. 13 (no off. rep.).
To render a railway company liable
for Injuries to a brakeman caused by
the negligence of other employes in
the management of the train while
he was attempting to make a coup-



ling, such other employes must
have been superior to the brakeman
in authority and control of the
train, and the negligence must have
been gross: Greer v. Louisville &c.
R. Co., 94 Ky. 169; s. c. 14 Ky. L.
Rep. 876; 21 S. W. Rep. 649 (hold-
ing that a fireman, while acting as
engineer, is superior to the brake-
man).

1T b Southern R. Co. v. Barr, 21 Ky.
L. Rep. 1615; s. c. 55 S. W. Rep. 900
(no off. rep.). So, an instruction
that there must be gross negligence
on the part of the servants in
charge of a passenger-train, in or-
der to find for the plaintiff, an en-
gineer on a following freight-train,
injured by reason of such negli-
gence, was more favorable to the
defendant than the law authorized,
as ordinary negligence was suffi-
cient to make the defendant liable:
Louisville &c. R. Co. v. Hiltner, 21
Ky. L. Rep. 1826; s. c. 56 S. W. Rep.
654; s. c. on rehearing, 22 Ky. L.
Rep. 1141; 60 S. W. Rep. 2 (no off.
rep.). So, the failure of the em-
ployes in charge of the first section
of a freight-train, which was run-
ning more slowly than the schedule
required, to signal the following
section which left the station only
ten minutes after the first section,
was gross negligence toward the
employe's in charge of the second
section, rendering the company lia-
ble to them for injuries thereby re-
ceived: Chesapeake &c. R. Co. v.
Hoskins, 19 Ky. L. Rep. 1359; s. c.
43 S. W. Rep. 484 (no off. rep.).
Under the law of Kentucky a car-
inspector and the man in charge of
an engine in a railroad-yard are not
fellow servants, not being of the
same grade. or rank in the service;
nor are they considered to be in the
same department of work; so that
the master is liable for an injury
to the car-inspector resulting from

963



Digitized by



Google



4 Thomp. Neg.] the fellow-servant doctrine.

injury are of the same grade or rank, and engaged in the same field of
labor, they are held to he fellow servants, and the master is not liable
for the negligence of such servants toward each other whether it be
ordinary or gross. 170

§ 4942. Illustration in the Case of a Superintendents of a Machine-
Shop and an Errand-Boy Employed therein. — The Supreme Court of
the United States ruled, affirming a judgment of a very able Circuit
Judge, that an errand-boy in a railway machine-shop was not a fellow
servant with the superintendent of the shop; so that if the latter
ordered the former into a position of exceptional hazard, to perform
a service outside the line of duty which he had contracted to do, and
he was there injured, he might recover damages. In giving the judg-
ment of the court, Mr. Justice Davis, said : "For the consequences of
this hasty action the company are liable, either upon the maxim of re-
spondeat superior, or upon the obligations arising out of the contract
of service. The order of Collett was their order. They cannot es-
cape responsibility on the plea that he should not have given it. Hav-
ing entrusted to him the care and management of the machinery,
and, in so doing, made it his rightful duty to adjust it when dis-
placed, and having placed the boy under him, with directions to obey
him, they must pay the penalty for the tortious act he committed in
the course of the employment. If they are not insurers of the lives
and limbs of their employes, they do impliedly engage that they will
not expose them to the hazard of losing their lives, or suffering great
bodily harm, when it is neither reasonable nor necessary to do so.
The very able judge 18 who tried the case instructed the jury on the



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 132 of 165)