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Commentaries on the law of negligence in all relations online

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company, the B. company was liable to him in damages. 18 His right
of action against the B. company did not rest in privity of contract, for
there was no privity except between the two companies. It rested upon
a general public duty which the B. company owed to all persons law-
fully on its track to use ordinary or reasonable care to avoid injuring
them. The engineer of the A. company occupied the position of a*
licensee upon the premises of the B. company; this being so, the lia-
bility of the B. company to him arose on principles already discussed. 19
Neither was he deemed in any sense the servant of the B. company, nor
the fellow servant of the switchman by whose negligence he was in-
jured. 20 A similar view has been taken of this question in California,
in a case much stronger on its facts. A road of the A. company
formed a junction with that of the B. company, and the cars of the B.
company, under an arrangement between the two companies, ran for
four miles over the road of the A. company. The B. company en-
trusted a servant of the A. company with the duty of switching its
trains, so as to avoid collisions with the trains of the A. company, and
gave him a joint time-table of the two roads to enable him to do so.
Owing to the negligence of this servant, a train of the B. company



s. c. 35 N. E. Rep. 483. The masons
had left the derrick firmly guyed.
The carpenters were negligent in
moving it, letting it fall and injure
one of the masons.

"Smith v. New York &c. R. Co.,
19 N. Y. 127; Sawyer v. Rutland
&c. R. Co., 27 Vt 370. There are
some contrary rulings, but not from
authoritative courts. Thus, it has
been held by the Supreme Court of
the District of Columbia, that if, by
an agreement between two railway
companies, which may be designat-
ed A. and B., B. company runs its
cars over the track of A. company,
a servant of A. company, injured
while flagging a train of 9- com-
pany, cannot recover damages of
B. company, for he is deemed a fel-
low servant with the servants of B.
company: Mills v. Alexandria &c.
R. Co., 2 McArth. (D. C.) 314. So, it
has been held by one of the depart-
ments of the Supreme Court of New
York, that if two railways, A. and
B., have running connections with
each other, and the arrangement be-



tween them is, that when the cars
of A. company are received by B.
company to be forwarded, they are
to be first inspected by a servant of
B. company, deputed for the pur-
pose; and such servant of B. com-
pany, while so inspecting the cars
of A. company, upon the track of
A. company, before the cars have
been delivered to B. company, while
yet they are under the control of

A. company, is injured by the neg-
ligence of the servants of A. com-
pany, he cannot recover damages
of A. company, for he is deemed the
common agent of A. company and

B. company for inspecting such
cars (it being for the benefit of
both that they should be inspect-
ed), and the servants of A. com-
pany are deemed his fellow serv-
ants engaged in the same common
employment: Cruty v. Erie R. Co.,
3 Thomp. & C. (N. Y.) 244.

"Vol. I, § 1836, et seq.
M Sawyer v. Rutland ftc. R. Co.,
27 Vt 370.

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

collided with a train of the A. company while on the track of the A.
company, killing a servant of the A. company. It was held that the
B. company was liable for the damages. The negligent servant was
deemed to have been acting at the time as a servant of the B. company,
and was hence not a fellow servant with the deceased; and the fact
that he was employed and paid by the A. company, in whose employ the
deceased also was, made no difference. 21 So, where a railway com-
pany, which may be called A., permitted another company, which may
be called B., to use its' station, subject to its rules and to the control of
its station-master, and one of its servants was injured by the negli-
gence of an engine-driver of the B. company, who shunted a train upon
the siding without giving or receiving the signal required by the rules
of the A. company, it was held that such servant of the A. company
was not a fellow servant with the engine-driver of the B. company, and
that the B. company must pay damages to him. 22 The Supreme Court
of Minnesota has held that if two railway corporations engaged in car-
rying passengers and freight over an entire route, for the purpose of
carrying their passengers, freight and mails, run their conveyances so
as to connect at the common terminus of both lines, and sell tickets
over the entire road, but keep the fares and freights for each portion
distinct, there is no such legal' identity between them as* will prevent
aii employ^ of one of them from maintaining an action against the
other, although for an injury done him through the negligence of the
latter^ servant. 28

§ 5001. Servants of Stevedores and Servants of Other Employers. —

Where, under an arrangement between a firm of stevedores and an oil
company, the latter furnished steam-power and mechanical appli-
ances, with persons to manage the same and aid in loading a vessel
for the oil company, the stevedores paying the company a certain com-
pensation per barrel for the total quantity of oil laden, a person who
was in the immediate employ of the stevedores, and was stationed at
the gangway to signal the man in charge of the hoisting, who was fur-
nished by the oil company, was not a fellow servant of the latter ; so
that for the latter^ negligence in raising a barrel without a signal being
given, and without warning the former, whereby the former was in-
jured, the former could recover. 24

n Taylor v. Western Pac. R. Co., Week. Rep. 108; 15 L. T. (N. S.)

45 Cal. 323. It is difficult to see 361.

how this case can be vindicated on n Carroll v. Minnesota Valley R.

sound principles. Co., 13 Minn. 30.

n Warburton v. Great Western R. * Sanf ord v. Standard Oil Co,

Co., L. R. 2 Exch. 30; s. c. 36 L. J. 118 N. Y. 571; s. c. 24 N. B. Rep.

(Exch.) 9; 4 Hurl. & Colt. 695; 15 313; 29 N. Y. St. Rep. 856. See post,

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BELATION OF THE PARTIES. [2d Ed.

§ 5002. Applications of the Fellow-Servant Rule in Cases of Joint
Operation by Different Masters. — A train-hand upon a train operated
over the road of another company is not in the service of the latter
company, nor a fellow servant with its servants, from the mere fact
that the trains of both companies, by agreement between them, are
operated over a joint track, under rules and regulations established
by the latter company, where the latter has no control oVer the serv-
ants of the former, and neither can discharge the servants of the
other. 25 Under a contract between two railroad companies for the
running of through trains over both roads, by which one is to furnish
engines and men and the other to pay a rental for the engines, each
company paying the men in proportion to the work done on the re-
spective roads, the former is the master liable for the condition of the
engines to its servants, even while the engines are running over the
portion of the road belonging to the other company, although during
the time they are subject to its rules. 26

§ 5003. In Case of a Joint Operation Both Masters may be liable.

— In case of a joint operation of the same plant or property by two
masters or proprietors, if a servant is injured through the negligence
of either, both may be liable, and one may be liable for the negligence
of the other. Thus, where the putting of a heater in a distillery was
the joint undertaking of the distillery company and the makers of the
heater, both companies were liable to one of the servants of the dis-
tillery company, who assisted in the work by direction of its foreman,
for an injury resulting from the breaking of a defective rope furnished
for the work ; and each company was liable for the negligence of the
other. 27 In like manner, two railroad companies which jointly oper-
ated a road under one superintendent, were held jointly and severally
liable for injuries to a fireman employe^ by one of them, caused by
the negligence of such superintendent in not maintaining a safety-
switch on a side-track on a steep down-grade, and the negligence of
an engineer of the company not employing the fireman, in running
his engine against cars on such side-track, and causing them to run
on to the main track, and after proceeding down a mountain grade

§ 5185. Evidence which did not war- William F. Babcock, 31 Fed. Rep.

rant the conclusion that the vessel 418.

was liable for an injury received by * Bosworth v. Rogers, 82 Fed.

an employ6 of a master stevedore Rep. 975; s. c. 53 U. S. App. 620; 27

In stepping into a trimming-hatch C. C. A. 385.

while loading the vessel, which "Hurlbut v. Wabash R. Co., 130

hatch was exposed by the removal Mo. 657; s. c. 31 S. W. Rep. 1051.

of dunnage, the master of the ves- "Old Times Distillery Co. v.

sel having given no direction to Zehnder, 21 Ky. L. Rep. 753; s. c.

leave the hatch uncovered: The 52 S. W. Rep. 1051 (no off. rep.).

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

for some distance, to run against the train on which such fireman was
employed. 28 Stated differently, it was held that an injury visited
upon an employ^ of one of two railway companies, which operated a
road jointly under one superintendent, caused by the negligence of
the superintendent, and also by the negligence of the engineer operat-
ing at the time for the company which was not his employer, was not
an injury which should be ascribed to the negligence of a fellow serv-
ant, but to the combined negligence of both railway companies, they
being jointly and severally liable therefor. 29

§ 5004. When One Servant Kay Become, pro hac Vice, the Servant
of Another Master, so that the Servants of the Latter will be his Fel-
low Servants. — A general servant of one person may, for a particular
work or occasion, become, pro hac vice, the servant of another person,
so that the latter will not be liable to him for an injury caused by the
negligence of his proper servant engaged with him in a common em-
ployment; 80 and vice versa. 31 But to Establish this relation, it must
appear that the servant has, expressly or by implication, consented to
the transfer of his services to the new master, and to accept him as
his master pro hac vice, and has entered upon such new service, and
has submitted himself therein to the direction and control of the new
master. 82 Where the servant is in the general employment of one
master, and temporarily passes under the control of another master,
by whom the servant inflicting the injury is employed, the injured
servant not knowing that he has changed masters, — the fellow-servant
rule does not apply, but he may recover damages from the master
whose servant has done the injury. 88 What is here said has no refer-

* Galveston &c. R. Co. v. Croskell, f endants occupied a room In a wire

6 Tex. Civ. App. 160; s. c. 25 S. W. factory, ana paid the wire factory

Rep. 486. for the services of two men in the

" Galveston &c. R. Co. v. Croskell, employ of the factory. The defend-

6 Tex. Civ. App. 160; s. c. 25 S. W. ants later hired a man directly,

Rep. 486. who was injured while working

30 Anderson v. Boyer, 156 N. Y. with the other two, through the

93; rev'g 8. c. 13 App. Div. (N. Y.) negligence of one of them. It was

258; 43 N. Y. Supp. 87; 77 N. Y. held that all three were employes

St. Rep. 87 (owner of a boat had of the defendants, and hence fellow

put the charterer in absolute pos- servants, and that the defendants

session of boat and captain, so that were not liable for that reason.

the captain became the servant of B Delaware &c. R. Co. v. Hardy,

the shipper in the work of unload- 59 N. J. L. 35; s. c 4 Am. & Eng.

ing, so that another employ^ of the R. Cas. (N. S.) 577; 34 Atl. Rep.

shipper, injured tnrough the negli- 986; s. c. on former appeal, 58 N.

gence of the captain, could not re- J. L. 205; 35 Atl. Rep. 1130; alTg

cover against the owner of the s. c. 57 N. J. L. 505; 31 Atl. Rep.

boat). 281.

"Rozelle v. Rose, 3 App. Div. (N. "Morgan v. Smith, 159 Mass.

Y.) 132; s. c. 39 N. Y. Supp. 363. 570; s. c. 35 N. E. Rep. 101. It has

In this case it appeared that the de- been held that one who is in the

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KELAtflON OP THE PARTIES.



[2d Ed.



ence to a case where one master merely borrows the facilities of an-
other master and operates them by means of his own servants, and
injury is visited in operating them by one servant upon another. Here
the question arises as among fellow servants, and the fellow-servant
rule applies. Thus, where a shipper, by consent of a railroad company,
undertakes with the help of his own employes alone, to run cars which
have been hired to him down a grade to a place where they are needed
for loading, and while so employed one of such employes is injured
by the negligence of his coemploy6s, the railroad company is not liable
to an action for damages on account of such injuries. 84

§ 5005. One Employer Lending his Servant to Another Employer.

— "If I lend my servant to a contractor who is to have the sole control
and superintendence of the "work contracted for, the independent con-
tractor is alone liable for any wrongful act done by the servant while
so employed. The servant is doing, not my work, but the work of



general employment of a truckman,
who, at the request of a third per-
son, is sent with a horse to operate
the hoisting apparatus in certain
warehouses, is not a fellow servant
of the employes of the latter so as
to exonerate the latter from liabil-
ity for injuries to him, while pass-
ing from one warehouse, after com-
pleting the work there, to the other,
from the fall of a part of the appa-
ratus owing to their negligence, al-
though he received his orders from
the latter's foreman when to start
the horse forward and when to stop
him or back him up: Murray v.
Dwight, 161 N. Y. 301; s. c. 55 N. E.
Rep. 901; aff'g s. c. 15 App. Div.
(N. Y.) 241; 44 N. Y. Supp. 234. In
another case the plaintiff, while
employed by an iron company, was
taken by his employer to where a
gang of bridge-men were at work,
and told to do what their superin-
tendent should direct He did not
know by which company such men
were employed, and was not told
that he was working for the bridge
company, but was paid by the iron
company, which in turn was paid by
the bridge company for his services,
and he considered himself subject to
the orders of the iron company. It
was held that he was not a fellow
servant with the superintendent of
the bridge-gang, who placed him at
certain work: Brennan v. Berlin



Iron Bridge Co., 74 Conn. 382; s. c.
50 Atl. Rep. 1030.

M Hanna v. Railway Co., 88 Tenn.
310; s. c. 12 S. W. Rep. 718; 6 L. R.
A. 727. An engineer running a
train laden with telegraph-poles
was held to be the servant of the
railroad company employing and
paying him, although temporarily
subject to the orders of the tele-
graph company, represented in the
immediate control of the train by
one of its employes; and according-
ly, the railroad company was held
to be liable for a personal Injury
to a servant of the telegraph com-
pany rightfully on the train as a
laborer, resulting from the negli-
gence of the engineer: Coggin v.
Central R. Co,, 62 Ga. 685. The re-
lation of master and servant did
not exist between plaintiff and de-
fendant so as to render applicable
the rule in regard to injuries
caused by fellow servants, where
the plaintiff, a driver, regularly
employed and paid by a truckman,
was sent by his master with a horse
to furnish power for operating
hoisting-appliances in defendant's
warehouse, and was injured while
so engaged by the negligence of de-
fendant's servants: Murray v.
Dwight, 161 N. Y. 301; s. c. 55 N. E.
Rep. 901; aff'g s. c. 15 App. Div.
(N. Y.) 241; 44 N. Y. Supp. 234
(Gray, J., dissenting).



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

the independent contractor. " 85 To illustrate: The defendant em-
ployed a stevedore to unload his vessel. The stevedore employed his
own laborers, amongst whom was the plaintiff, and also one of the
defendant's crew, named Davis, whom he paid, and over whom
he had entire control, to assist them in unloading. The plaintiff, while
engaged in the work, was injured from the negligence of Davis. It
was held that the defendant was not liable. Davis was not his servant
while so engaged, but was the servant of the stevedore. 86

§ 5006. Distinction between Joint Operation and Joint Employ-
ment. — A comparison of many of the foregoing cases will lead to the
discovery that there is a well-grounded distinction between the joint
operation of property by two or more employers and a joint employ-
ment of servants by them. The general rule is, that where there are
two or more masters, each one of whom hires, pays, discharges and
controls his own servants, the fellow-servant rule does not apply as
between the servants of these different masters, although there may be
a joint operation of the properties by them, and although the servants
may be thrown together in a state of con-association in prosecuting
their work. Thus, where two railway companies jointly operating a
railway under one superintendent, employed brakemen, station-
agents, telegraph-operators, etc., jointly, but each company employed
its own trainmen, an engineer employed by one of the companies was
not a fellow servant of a fireman employed by the other company, so
as to prevent a recovery by such fireman of damages from the com-
pany whose servant the engineer was, for personal injuries caused by
the negligence of the engineer. 87 So, where two railway companies
owned and used a joint track, operating it und6r the orders of the
train-dispatcher and superintendent of one of the companies, an
engineer in the employ of the other company was not deemed a fel-
low servant of an engineer in the employ of the company whose train-
dispatcher and superintendent operated the road, so as to prevent his
recovering for injuries proceeding from the negligence of the engineer
of the latter company in disregarding an order of the dispatcher as to
where to meet the train operated by the injured engineer. 88 Quite
within this doctrine was the case where the defendant railroad com-

85 Brett, J., In Murray v. Currie, n Galveston &c. R. Co. v. Croskell.

L R. 6 C. P. 24, 28; s. c. 40 L. J. 6 Tex. Civ. App. 160; s. c. 25 S. W.

(C. P.) 26; 19 Week. Rep. 104; 23 Rep. 486.

L. T. (N. S.) 557. "Texas &c. R. Co. v. Easton, 2

"•Murray v. Currie, supra. To the Tex. Civ. App. 378; 8. c. 21 S. W.

same effect Is Murphy v. Caralli, 3 Rep. 575.
Hurl. & Colt. 461; s. c. 34 L. J.
(Exch.) 14.

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RELATION OF THE PARTIES. [2d Ed.

pany was the lessee of the railroad on which the plaintiff was employed
as a brakeman, and the plaintiff's train was permitted to run over the
defendant's road, and while doing so was subject to the defendant's
division superintendent, and the general officers of each road were the
same, but each road was operated by different rules, had different
superintendents and subordinate officers, different freight and trans-
portation offices and accounts, and each road selected its own employes.
Here it was held that the plaintiff was not a fellow servant with an
engineer on the defendants road. 89

§ 5007. Further Illustrations of this Distinction in Railway Serv-
ice. — From the preceding doctrine it follows that an agreement be-
tween several connecting railroad companies, entered into for the pur-
pose of securing speed and comfort for their through passenger-
traffic between certain points, does not have the effect of making an
employ6 of one of the companies a fellow servant of an employ^ of
one of the other ones; so that where an employ^ of one company,
while delivering cars to the station on the road of another of the
companies, had his foot caught in the defective track of the road of
the latter company, whereby he was run over and injured by the car
which he was delivering, and from which he had just detached the
horses, — he could recover damages from the latter company. 40 So,
the trainmen on a train belonging to one railroad company, but run
into the yard of another company, are not fellow servants of an em-
ploy6 of the latter company, who is engaged in repairing the track
and who is killed by the negligence of the employes of the former
company, although the rules of the latter company in regard to the
management of trains in the yard govern them. 41 Where a collision
occurred between two trains belonging to different railway companies,
neither of which controlled the employes of the other, except that on
the piece of track belonging to the defendant company, which was used
in common by both companies, on which the collision occurred, the
employes of one company were obliged to obey the general rules of
the defendant company and the special orders of its train-dispatcher, —
it was held that the employes of the two companies were not fellow

•Hurl v. New York Cent. &c. R. rule of the latter company requir-

Co., 68 App. Dlv. (N. Y.) 400; s. c. lng a brakeman to be on the end

73 N. Y. Supp. 1042. of a backing train, and ran over

*° Philadelphia &c. R. Co. v. State, the employe of the latter company,

58 Md. 372. who was engaged in repairing the

41 Noonan v. New York &c. R. Co., track, and who had a right to pre-

42 N. Y. St. Rep. 41; s. c. 16 N. Y. sume that the rules of his company

Supp. 678. Employes of the former would be observed by the defend-

company neglected to observe the ants.

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

servants of a common employer, nor within the operation of the fel-
low-servant rule. 42

§5008. Miscellaneous Illustrations of the Principle that the
Servants of Different Masters are Not Fellow Servants. — It has been
held that the servant of a lighterman, at work upon his master's barge
unloading a steamship, is not a fellow servant with one of the crew of
the steamship. 48 So, if A., a master-carter, is engaged at the request
of B., a cotton-factor, in hauling cotton from the warehouse of B.,
and sends his servant with his lorry to get the cotton, and the servant,
while receiving the cotton into his lorry, is injured by the negligence
of B/s servants, the servant of A. may recover damages of B. He is
not deemed the fellow servant of the servants of the cotton-factor, be-
cause he was not under the same control, did not form a part of the
same establishment, was not employed upon a common object, but



48 Phillips v. Chicago Ac. R. Co.,
64 Wis. 475. A railroad company,
at the request of a telegraph com-
pany, selected a brakeman to guard
a car used by the telegraph com-'
pany in moving materials while
constructing its line along defend-
ant's track; it being his duty to
flag trains, so as to prevent their
colliding with such car. He had
exclusive charge of the switches,
and was paid by the telegraph com-
pany for his services in accompany-
ing the car. While thus engaged
he ran the car on to a side-track,
but carelessly left the switch open;
and a passing engine, running into
it, was derailed and the engineer
killed. It was held that such
brakeman was the servant of the
telegraph company, and that he and
the engineer were not coemployes,
and the railroad company was lia-
ble for the engineer's death: Hal-
lett v. New York Ac. R. Co., 167
N. Y. 543; s. c. 60 N. E. Rep. 653;
rev'g s. c. 42 App. Div. (N. Y.)
123; 58 N. Y. Supp. 943. In the
' Supreme Court, holding them to be
coservants, two judges dissented.
In the Court of Appeals three
judges were for reversal on the
ground that they were not coserv-
ants; one for reversal on the
ground that the switchman was the
sole representative of the railroad
company to protect the tracks; and
three judges were for affirmance.
It is not stated why the railroad
company was liable. A track

1024



in the yards of the L. Co. was kept
clear for the use of the C. Co. The
engineer of the C. Co. kicked some
cars in upon this track and left
them so near the track of the L.
Co. that a switchman employed by
the L. Co. was knocked off the side
of a car and killed. The cars had
not been there long enough to
charge the yardmaster or other
employes of the L. Co. with notice



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 140 of 165)