Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

. (page 136 of 165)
Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 136 of 165)
Font size
QR-code for this ebook


withstanding .that he attempted to
control the swaying framework by
seizing it with his hands and hold-
ing it in proper position by his
unaided strength, in which act he
was a fellow servant of the plain-
tiff; since his order to dispense
with the tag-line was an exercise
of the authority conferred on him
by the master to order, direct and
control the operation of raising the
framework: Pittsburg Bridge Co.
v. Walker, 170 111. 550; s. c. 48 N.
E. Rep. 915; aff'g s. c. 70 111. App.
55. Under this theory the fore-



man of an ice company who di-
rected a laborer under him to per-
form work in such manner and un-
der such circumstances as to sub-
ject the laborer to great danger of
injury, did not become a co-employ6
of such laborer as to an injury to
him caused directly by the fore-
man's negligent order, merely be-
cause the foreman performed an act
of manual labor in setting in mo-
tion the agency which caused the
injury. The foreman directed plain-
tiff to loosen a block of ice which
was stuck fast in a chute. While
plaintiff was engaged in doing so,
his back being turned toward the
foreman, the latter negligently,
started another large block of ice
down the chute, injuring plaintiff:
Crystal Ice Co. v. Sherlock, 37 Neb.
19; s. c. 55 N. W. Rep. 294. Refin-
ing on this subject quite beyond
any distinction which could be
drilled into the head of the pro-
prietor of a stone quarry, it was
held. by one court that a foreman
in a quarry, in ordering a quarry-
man to work below a stone which
is being quarried, performs an act
pertaining to the duties of the mas-
ter; but in pounding and prying
upon such stone in attempting to
remove it from its bed, whereby the
stone is broken and falls upon the
quarryman, he performs the duty
of a servant and becomes a fellow
servant with such quarryman, for
whose negligence no recovery can
be had from the master: Stock-
meyer v. Reed, 55 Fed. Rep. 259;
s. c. 47 Alb. L. J. 488.



985

Digitized by LjOOQLC



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

employe injured, although, as to the act causing the injur}', he acted as
a fellow servant of the employe. 105

§4965. Presumptions as between Negligence of Vice-Principals
and Negligence of Fellow Servants. — In an action by an employe
against a manufacturing corporation, for personal injuries received
while endeavoring to escape from its mill, which was on fire, it ap-
peared that the fire was caused by the heating of a bearing in one of
the machines used in the mill, and that it might have been readily ex-
tinguished when first discovered ; that the defendant had a cistern at
the top of the building with pipes leading to each story of the mill, to
which were attached lines of hose, but at the time of the fire the water
did not run when an attempt was made to use it. It was held, in the
absence of evidence of any reason why the water did not run, that it
must be attributed to the negligence of the fellow servants of the
plaintiff in failing to keep the apparatus in order, or in failing to put
it in operation ; and that the defendant was not liable. Accordingly
the plaintiff was nonsuited. The decision proceeds upon the ground
that the defendant had done its whole duty when it supplied the
proper appliances, the care and use of which must necessarily be en-
trusted to its servants. 108 The tipping over of a pile of boards^ which
workmen working without supervision are piling up in their work, by
which one of them is crushed, has been held to raise a presumption
that the accident occurred through their negligence. 10 *" But negligence
in running a railway-train at a time when, by reasqn of a storm and
the danger of washouts, it was unsafe to run it at all, will, in the ab-
sence of evidence as to who directed it to be run, be attributed to the
railway company and not to the engineer and fireman, who were fel-
low servants of a trainman killed thereby. 108

§ 4966. Greater Age or Experience does not make a Servant a
Vice-Principal. — The fact that one of several co-servants is older than

106 Texas &c. R. Co. v. Nix (Tex. proper order, as rests upon him to

Civ. App.), 23 S. W. Rep. 328 (no provide such means in the first in-

off. rep.). stance. See ante, §§ 3941, 4702.

1W Jones v. Granite Mills, 126 xm McQueen v. Mechanics' Insti-

Mass. 84. This is one of the most tute, 107 Gal. 163; 8. c. 40 Pac. Rep.

unconscionable decisions to be 114.

found in the books. It deserves to 10 *Stoher v. St. Louis &c. R. Co.,

be characterized as monstrous, 105 Mo. 192; s. c. 16 S. W. Rep. 591.

cruel, and wicked. It ignores the Circumstances under whieh the act

obvious consideration that the mas- of repairing a ladder was attributed

ter is under the same duty of main- to a vice-principal, and not to a fel-

taining a proper inspection for the low servant: Huth v. Dohle, 76 Mo.

purpose of seeing that his means of App. 671; s. c. 1 Mo. App. Repr.

extinguishing fires are kept in 586.



986



Digitized by LjOOQLC



WHO ARE AND WHO ARE NO* FELLOW SERVANTS. [2d Ed.

the otHers and that directions for the conduct of the work are given
more particularly to him than to the others; 109 or that one of them
has had more experience than another and is authorized to give the
latter directions with respect to their common work, 110 — does not
make the former a vice-principal with respect to the latter.

10B Hartman v. Kloeppinger, 9 (N. Y.) 132; 8. c. 39 N. Y. Supp.
Ohio C. C. 433; s. c. 3 Ohio Dec. 19. 363.
no Rozelle v. Rose, 3 App. Div.



987

Digitized by LjOOQLC



4 Thomp. Neg.] the fbllow-sekvant doctrine.



CHAPTER CXXV1.



WHAT IS COMMON EMPLOYMENT WITHIN THIS DOCTRINE.



Section

4970. Servants so closely associ-

ated that they can watch
over each other's conduct.

4971. The Illinois doctrine of con-

association.

4972. Other jurisdictions in which

the con-association doctrine
obtains.

4973. Illustrations of the con-asso-

ciation doctrine.

4974. This con-association doctrine

generally denied.

4975. Cases where there is no con-

association or common em-
ployment and where the em-



Section

ploygs are deemed not to be
fellow servants.

4976. Servant who has charge of

the construction and repairs
of machinery deemed not to
be a fellow servant with one
engaged at work with the
machinery.

4977. Contrary doctrine that such a

servant is a fellow servant
with one engaged at work
with the machinery.

4978. Illustrations of what is com-

mon employment

4979. Servants working under dif-

ferent overseers.



§ 4970.' Servants so Closely Associated that they can Watch Over
Each Other's Conduct. — It is perhaps on the question, What is com-
mon employment? that we find the greatest divergencies of opinion.
In a few jurisdictions the rule under consideration is restricted to
cases where the servant injured and the servant inflicting the injury
are so closely associated that they can watch over each other's con-
duct, and, if necessary, report it to the common master. The Tea-
son for the general rule is one of public policy. Its object is to se-
cure to the public a more faithful service from the employes of rail-
way companies, navigation companies, and other companies conduct-
ing a business wherein the safety of the public is involved, by mak-
ing it the interest of each one of the employes of such persons or
corporations to look after and encourage carefulness and fidelity in
all the rest. This reason can have no application to employes whose
situation allows them no corrective influence over each other; 1 but

1 Stephens, X, in Cooper v. Mul- 79; Frost Man. Co. v. Smith. 98 I1L

lins, 30 Ga. 146, 150; s. c. 76 Am. App. 308; s. c. affd, 197 111. 253;

Dec. 638; Krogg v. Atlanta Ac. R. 64 N. E. Rep. 305; Toledo 4c. R.

Co., 77 Ga. 202; s. c. 4 Am. St. Rep. Co. v. O'Connor, 77 111. 391; Louis-

988



Digitized by



Google



WHAT IS COMMON EMPLOYMENT WITHIN THIS DOCTRINE- [2d Ed.

i

where this doctrine obtains and the servants are so disassociated that
the purpose of the rule is defeated, they are not deemed fellow serv-
ants within the meaning of the rule under consideration, but the
rule of respondeat superior applies and the master is liable to one
who is injured by the negligence of the other. It has been reasoned
that an application of the fellow-servant rule which would put one serv-
ant in the situation of accepting the risk of the negligence of another
servant, engaged in a service so remote from him that there is no
opportunity of exercising that superintending care which the rule
is intended to enforce, would operate as a penalty and would be
sheer cruelty. 2 On the other" hand, where the con-association above
spoken of exists, the servants thus associated are fellow servants un-
less one of them is placed in such a superintendence over the others
as to be deemed a vice-principal of the common master. 8

. § 4971. The Illinois Doctrine of Con-Association. — The doctrine
of the preceding section is chiefly in vogue in the State of Illinois;
and as formulated in many decisions of the Supreme Court and of the
Appellate Court of that State, with little variation, it is that, in
order to constitute the servants of a common master fellow servants
within the meaning of the law, it is essential that they should be,
at the time in question, actually cooperating with each other in the
particular business in hand in the same line of employment, or that
their duties should be such as to bring them into habitual associa-
tion, 60 that they may exercise a mutual influence on each other pro-
motive of proper caution.* Stated differently, the same doctrine is

vllle &c. R. Co. v. Cavens, 9 Bush bridge, 1 Ga. 195; Louisville &c. R.

(Ky.) 659; Louisville &c. R. Co. v. Co. ▼. Yandell, 17 B. Mon. (Ky.)

Edmonds, 23 Ky. L. Rep. 1049; s. c. 586. Compare Walker v. Boiling,

64 N. W. Rep. 727 (no off. rep.) 22 Ala. 294; Lewis* v. McAfee, 92

(where a disassociated servant is Ga. 465; Memphis &c. R. Co. v.

^ injured by the gross negligence of Jones, 2 Head (Tenn.) 517.

another servant — Kentucky rule); 'North Chicago St. R. Co. v. Con-
Fort Hill Stone Co. v. Orm, 84 Ky. way, 76 111. App. 621 (where their
183; Quincy Min. Co. v. Kittft, 42 labors directly co-operate with his
Mich. 34 (so long as both are in own in the particular work in
the same general business, so that which they are engaged),
the negligence of the one may con- * Western Tube Co. v. Polobinski,
tribute to the danger of the other); 94 111. App. 640; s. c. aff'd, 192 111.
Nashville &c. R. Co. v. Jones, 9 132; 61 N. E. Rep. 451; Chicago
Heisk. (Tenn.) 27. Ac. R. Co. v. Stallings, 90 111. App.
2 Stephens, J., in Cooper v. Mul- 609 (therein a good statement of
lins, 30 Ga. 146, 150; s. c. 76 Am. the doctrine); Chicago City R. Co.
Dec. 638. That the rule in question v. Leach, 80 111. App. 354; Pagels
did not apply to slaves, whose v. Meyer, 88 111. App. 169; Chicago
status was such that they could not &c. R. Co. v. Kelly, 127 111. 637;
watch over or intermeddle with s. c. 21 N. E. Rep. 203; Edward
their fellow workmen, being free Hines Lumber Co. v. Ligas, 68 111.
white men, — see Scudder v. Wood- App. 523; s. c. 2 Chic. L. J. Wkly.

989



Digitized by LjOOQLC



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

that where one employe is injured by the negligence of another while
they are cooperating with each other in a particular business in the
line of their employment, and in the due observance of their duties,
necessarily exercising an influence upon each other promotive of
proper caution, they are to be considered fellow servants, and the
employer is not liable, if he is himself guilty of no negligence. 5 The
reader will observe from the foregoing statements that in order
to the application of this doctrine, it is essential either that the
servants actually cooperate at the time of the injury in the particular
work then in hand, or that their usual duties should bring them
into habitual con-association, so that the exercise of proper caution
would be likely to result in the promotion of their mutual safety
and in the promotion of the safety of others whose safety depends
upon their conduct. 6 Nor is this rule without solid support in rea-
son, although it is but meagerly supported by authority either in Eng-
land or in this country. It is really an affirmation of the principle
of respondeat superior, and not a negation of it. At least, it rests
upon the same reason which supports the rule of respondeat superior,
which is the expediency and propriety of throwing the risk upon
those who can best guard against the danger, and of not putting it
upon those who are so situated that they cannot guard against it. 7
Where the servants are so associated that they can watch over each
other, they are in a position where they can guard against the con-
sequences of each others negligence; but where they are not so situ-
ated, then it should seem that they are entitled to look to the com-
mon master to guard against the dangers springing from the negli-
gence of his other servants, under the rule of respondeat superior, as

160; Chicago &c. R. Co. v. Hoyt, the meaning of this rule: World's

122 111. 369; s. c. 9 West Rep. 785; Columbian Exposition v. Bell, 76

12 N. B. Rep. 225; John Spry Lum- 111. App. 591.

ber Co. v. Duggan, 182 111. 218; s. "Cleveland &c. R. Co. v. Lawler,

c. 51 N. E. Rep. 1002; aff'g s. e. 80 94 111. App. 36; Illinois Steel Co. v.

111. App. 394; Swisher v. Illinois Bauman, 78 111. App. 73; s. c. aff*d,

Cent. R. Co., 182 111. 533; s. c. 55 178 111. 351; 53 N. E. Rep. 107; 69

N. E. Rep. 555; aff'g s. c. 74 111. Am. St Rep. 316 (always keeping

App. 164 (fireman and switchman in mind that the master has been

held to be fellow servants); Chi- guilty of no negligence in employ-

cago &c. R. Co. v. Moranda, 93 111. ing or in retaining in his service

302; s. c. 34 Am. Rep. 168 [disap- the servant who did the injury);

proving Chicago &c. R. Co. v. Mur- Joliet Steel Co. v. Shields, 146 111.

phy, 53 111. 336; s. c. 5 Am. Rep. 603; s. c. 34 N. E. Rep. 1108; aff'g

48; Valtez v. Ohio &c. R. Co., 85 111. s. c. 45 111. App. 453; Cleveland Ac.

500] ; Chicago &c. R. Co. v. O'Brien, R. Co. v. McLaughlin, 56 111. App.

155 111. 630; s. c. 40 N. E. 1023; 53.

aff'g s. c. 53 111. App. 198. But a • Chicago &c. R. Co. v. Moranda,

personal acquaintance between the 93 111. 302; s. c. 34 Am. Rep. 168.
two servants is not necessary to T Chicago &c. R. Co. v. Moranda,

make them fellow servants by rea- 93 111. 302; s. c. 34 Am. Rep. 168.
son of their con-association, within

990



Digitized by LjOOQLC



WHAT IS COMMON EMPLOYMENT WITHIN THIS DOCTRINE. [2d Ed.

though the injured servant were a stranger to him. 8 It must be kept
in mind that it is not necessary that both of the foregoing condi-
tions should concur in order to make the servant inflicting the injury
a fellow servant of the one receiving the injury; but it is enough
that they are actually operating with each other in the particular
work, or that their duties are such as to bring them into habitual
con-association. 9

§ 4972. Other Jurisdictions in which the Con-Association Doctrine
Obtains. — The Illinois con-association doctrine has been admitted,
with more or less distinctness, in several other jurisdictions, some-
times under the influence of statutes. 10



'In the case of Chicago &c. R.
Co. v. Murphy, 53 111. 336; s. c. 5
Am. Rep. 48, it was said: "When
the ordinary duties and occupations
of the servants of a common master
are such that one is necessarily ex-
posed to hazard by the carelessness
of another, they must be regarded
as fellow servants, within the mean-
ing of the rule which exempts the
common master from liability in
cases of this character." This lan-
guage was referred to with appro-
bation In the case of Valtez v. Ohio
6c. R. Co., 85 111. 500; but as a
definition of what shall constitute
fellow servants in this class of
cases it Is regarded as too broad
and is disapproved: Chicago 6c.
R. Co. v. Moranda, 93 111. 302; s. c.
34 Am. Rep. 168.

• It is, therefore, error, where this
rule obtains, to instruct a jury that
if the servants are not directly co-
operating with each other In a par-
ticular business in the same line
of employment, they are not fellow
servants; since, although they may
not be so co-operating, yet their
duties may be such as to bring
them into habitual •association, In
which case the rule would equally
apply: Chicago &c. R. Co. v. Stal-
ling* 90 111. App. 609.

"• Parker v. Hannibal Ac. R. Co.,
109 Mo, 362; s. c. 18 L. R. A. 802;
46 Alb. L. J. 286; 35 Cent. L. J. 187;
50 Am. ft Eng. R. Cas. 521; 19 S. W.
Rep. 1119; Union Pac. R. Co. v.
Brickson, 41 Neb. 1; s. c. 29 L. R.
A. 137; 59 N. W. Rep. 347 (holding
that con-association in the same de-
partment of duty or line of employ-
ment Is necessary to make fellow



servants) ; Daniels v. Union ftc. R.
Co., 6 Utah 357; s. c. 23 Pac. Rep.
762 (must be engaged in the same
line of work, be under the control
of the same foreman, and be em-
ployed and discharged by the same
head of the department in which
they work) ; Webb v. Denver ftc. R.
Co., 7 Utah 363; s. c. 26 Pac. Rep.
981; McTaggart v. 'Eastman's Co.,
27 Misc. (N. Y.) 184; s. c. 57 N. Y.
Supp. 222 (driver of a meat-wagon
not a fellow servant of a hod-car-
rier); International ftc. R. Co. v.
Johnson, 23 Tex. Civ. App.- 160;
s. c. 55 S. W. Rep. 772 (decision at
common law and also under a stat-
ute; recovery allowed for the death
of a brakeman where a switch had
been tampered with; evidence
showed that railroad company was
negligent in not maintaining a care-
ful inspection). In Tennessee, when
servants of the same master are en-
gaged in different departments of a
common service, or one is the su-
perior of another in the same de-
partment, either temporarily or
permanently, they are not fellow
servants, within the meaning of
this rule: East Tennessee ftc. R.
Co. v. De Armond, 86 Tenn. 73; s.
c. 6 Am. St. Rep. 816; 5 S. W. Rep.
556. In the same State, where the
servants of the same master are en-
gaged in different departments of a
common service, or where one is
the superior of another in the same
department, either temporarily or
permanently, they are not fellow
servants because of the statute:
East Tennessee ftc. R. Co. v. De Ar-
mond, supra. Under the provision
of the Constitution of Mississippi

991



Digitized by



Google



4 Tbomp. Keg.] the fellow-sebvant doctrine.

§ 4973. Illustrations of the Con-Association Doctrine. — Under the
con-association doctrine, where the servants of a railway company
operating a train of cars were guilty of negligence, whereby the serv-
ants of the same company on another train, or oij a hand-car, were
injured, the latter might recover damages from the company. The
two classes of servants were deemed not to be in such situations as
to be enabled to watch over each other's conduct. 11 So, a laborer in
the car-shops of a railway company and the foreman of the switch-
men in the train department of the same company are not fellow
servants. 12 So, switch-crews belonging to different trains of the same
railroad company, where the evidence fails to show the existence of
any habitual association which may exercise a mutual influence pro-
motive of proper caution among servants of the common master,
cannot be regarded as fellow servants. 18 So, where a conductor of a
train on one division of a railroad was injured by the gross negli-
gence of one of the servants in charge of a train on another division
of the same road at a point where the divisions crossed, the common
master was liable because there was no con-association within the
meaning of the rule in question. 14 So, where a mining company was



(Miss. Const. 1890, § 193) that every
employs of a railroad company, or
his personal representative, shall
have .the same remedies for an in-
jury produced by the act of omis-
sion of the corporation, or of its
employes, as other persons not em-
ployes, where the Injury results
from the negligence of a fellow
servant engaged in another depart-
ment of labor, — it is held that a
railway fireman and a telegraph-
operator are engaged in different
departments, and that there may be
a recovery for the injury or the
death of the fireman brought about
by the negligence of the telegraph-
operator: Illinois &c. R. Co. v.
Hunter, 70 Miss. 471; s. c. 12 South.
Rep. 480.
"Cooper v. Mullins, 30 Ga. 146;
. s. c. 76 Am. Dec. 638; Louisville &c.
R. Co. v. Cavens, 9 Bush (Ky.)
559; Nashville Ac. R. Co. v. Carroll,
6 Heisk. (Tenn.) 347 [reaff'd in
Nashville &c. R. Co. v. Jones, 9
Heisk. (Tenn.) 27]; Toledo &c. R.
Co. v. O'Connor, 77 111. 391. The
doctrine of Louisville &c. R. Co. v.
Cavens, supra, seems directly op-
posed to the previous case of Louis-
ville &c. R. Co. v. Robinson, 4
Bush (Ky.) 507, where It was held

992



that fellow servants engaged in the
same common employment were
within the rule. In that case, Rob-
ertson, J., said (4 Bush (Ky.) 509):
"The appellee [the brakeman] and
the engineer, in this case, were em-
ployed in the same running opera-
tions; and the fact that one served
on a passenger and the other on a
freight train does not affect the
reason and policy of implying, as
between themselves, such associa-
tions, knowledge, and trust as to
have induced an undertaking mu-
tually to risk all the contingencies
which the ordinary skill and care
of each other in his line of service
could not avert." There Is, how-
ever, as elsewhere seen, a statute
in Kentucky. *he construction of
which, as laid down by the Court
of Appeals of that State, is at vari-
ance with the ordinary rules relat-
ing to this subject. The conclu-
sions of these courts are expressly
denied in Missouri: Connor v. Chi-
cago &c. R. Co., 59 Mo. 285, per
Hough, J.

u Pool v. Southern Pac. R. Co., 20
Utah 210; s. c. 58 Pac. Rep. 326.

"Illinois Cent R. Co. v. Jones,
97 111. App. 131.

u LOUiSVille &C. R. Co. V. Ed-



Digitized by



Google



WHAT IS COMMON EMPLOYMENT WITHIN THIS DOCTRINE. [2d Ed.

excavating two tunnels — one above the other — on a hillside, and a
rock negligently ordered thrown down the hill by the superintendent
of the gang at the upper tunnel struck and injured a man working
under another superintendent at the lower tunnel, the superintend-
ent of the upper-tunnel gang and the injured man were not fellow
servants, not having opportunity to take precautions against each
other's negligence. 15 On the other hand, a conductor of a drill-crew,
a car-coupler, a railway signal-man, - a railway pin-puller, and a lo-
comotive-engineer, all engaged in "drilling" cars in a railroad yard, —
that is, sorting them upon various tracks according to their destina-
tions, — are fellow servants. 16 So, the different squads or groups of
house-painters occupying stages which, though separate, are near
each other, the groups doing the same kind of work, under the same
foreman, and the various stages, brushes, buckets, etc., being used
interchangeably, exhibit a condition of con-association; so that if a
workman on one of the stages is injured through the negligence of
a workman on the next stage, he cannot recover damages from the
common master, because the servant inflicting the injury is his fel-
low servant. 17

§4974. This Con-Association Doctrine Generally Denied. — It

should not escape attention that this "con-association doctrine" is
local and peculiar, and that, in the conception of a great majority
of the courts, the question of the non-liability of the master for an
injury inflicted by one servant upon another through negligence does
not depend upon the fact of the two servants being so closely asso-
ciated together that the one receiving the injury can acquire knowl-
edge of the negligent habits of the other and guard against the con-
sequences of them, so as to put him in the position of accepting the

monds, 23 Ky. L. Rep. 1049; s. c. even if the defendants were the
64 S. W. Rep. 727 (no off. rep.), common master of both sets of men,
See post, § 5297. The defendant's the verdict that the plaintiff was
lumber was being unloaded from a not a fellow servant of the yard-
vessel into the defendant's dock. The men would be justified: John Spry
defendant's yard-men were piling it Lumber Co. v. Duggan, 182 111. 218;
up after it was passed out of the s. c. 51 N. E. Rep. 1002; aff'g s. c.



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 136 of 165)