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Commentaries on the law of negligence in all relations online

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

proceed upon the preferable doctrine. 14 * Some of them proceed upon
the well-known theory that in the particular instance the master was
in default in the discharge of any one of the primary, absolute, or
unassignable duties of the owner, — as where the master of a ship
made use of a rope to suspend a triangle upon which men were to
sit while working upon the mast, which was manifestly defective by
reason of having been spliced and whipped so as to run smoothly. 140
Another proceeds upon the ground that the master, officers, and crew
of a vessel sunk in a collision with another vessel belonging to the
same owners, through the fault of the officers or crew of the latter
vessel, *are entitled to recover damages because they are not engaged
in common employment with such qfficers and crew. 14c This doctrine,
it will be observed, would equally apply to trainmen upon different
railway-trains. 14d In another case it was held that where a fireman on
a steam-tug was injured by the negligence of the master, he might
recover damages, they being of different rank, and the fireman being
subject to the orders of the master. 14c

§ 5180. Master of Vessel and Engineer or Fireman. — The master
of a steamboat and its engineer, 18 or its fireman, 16 have been held not
to be fellow servants, the reason being that the master, having entire
charge and control of the vessel, and the others being bound to obey
his orders, is a vice-principal.

§ 5181. Master of Vessel and Mate. — These have been held to be
fellow servants in the same common employment. 17

boards through the Insecure manner
of fastening the rope holding them
while being hoisted, where the fault
was that of one of the workmen en-
gaged in the common employment) ;
Hedley v. Pinckney &c. S. S. Co.,
[1892] 1 Q. B. 58; Wyman v. The
Duart Castle, 6 Can. Exch. 387 (cap-
tain, chief engineer, and employes
on board a steamship are fellow
servants of another employ^).

"a Keating v. Pacific Steam-Whal-
ing Co., 21 Wash. 415; s. c. 58 Pac.
Rep. 224 (holding that an ordinary
seaman and the mate or captain are
not fellow servants) ; Ramsay v.
Quinn, 8 Ir. R. C. L. 322; s. c. 1
Cent. L. J. 478 (the law regards the
captain as a special owner of the
ship, and he is liable in damages to
a member of the crew injured
through his negligence).

M b The Julia Fowler, 49 Fed. Rep.

"c The Petrel, [1893] Prob. 320.

14 d As to which see ante, § 5017.

"e The Clatsop Chief, 7 Sawy. (U.
S.) 274; s. c. 8 Fed. Rep. 163, 767.

"The Transfer No. 4 and Car
Float No. 16, 9 C. C. A. 521; s. c. 61
Fed. Rep. 364; following Chicago ftc.
R. Co. v. Ross, 112 U. S. 394; s. c. 5
Sup. Ct Rep. 184 (railroad con-

"The Clatsop Chief, 7 Sawy. (U.
S.) 274; s. c. 8 Fed. Rep. 163, 767.

1T Halverson v. Nisen, 3 Sawy. (U.
S.) 562; Mathews v. Case, 61 Wis.
491; s. c. 50 Am. Rep.. 151; 21 N. W.
Rep. 513 (mate could not recover for
an injury resulting from master's
failure to fasten a yawl-boat on the


Digitized by



§ 5182. Hate of Vessel and Members of the Crew. — The mate of
a vessel is generally deemed a fellow servant of the members of the
crew, since the* office of the mate is merely that of the foreman of
work; so that if a member of a crew is injured through the negligence
of the mate, he has no action against the ship or its owner. 18

§5183. Engineer of Boat and Machine-Oiler. — Under a statute
defining servants as "those engaged in the same general business," it
has been held that an oiler of the machinery on a steam ferry-boat is
a fellow servant of the engineer, by whose alleged negligence in start-
ing the machinery without warning the oiler the latter is killed,
notwithstanding the fact that the engineer employs and discharges
the firemen and oilers working under him. 19

§ 5184. Engineer of Vessel and Coal-Trimmer. — The engineer of
a vessel, through whose negligence the electric lights go out, has been
held to be the fellow servant of a coal-trimmer, who, in consequence
of such negligence, falls down a hatchway, where other lights which
were available were not put in place owing to the negligence of an-
other employed

"Livingston v. Kodiak Packing
Co., 103 Cal. 258; s. c. 37 Pac. Rep.
149; Benson v. Goodwin, 147 Mass.
237; s. c. 6 N. Bng. Rep. 592; 17 N.
E, Rep. 517 (sailor or "runner" on a
coasting vessel deemed a fellow serv-
ant of the mate while engaged un-
der his direction in getting up the
anchor); Kalleck v. Deering, -161
Mass. 469; s. c. 37 N. E. Rep. 450;
42 Am. St Rep. 421 (mate of coast-
ing vessel ordered sailor «to use a de-
fective triangle, constructed by the
mate, for the purpose of holding him
while scraping the mast — no recov-
ery for resulting injury, since the
employe" assumes risk of negligence
of his superiors in commanding him,
as well as negligence of fellow serv-
ants; besides which there was a pre-
sumption that sufficient materials
were furnished for the construction
of the triangle) ; Olson v. Clyde, 32
Hun (N. Y.) 425 (ship-owner not lia-
ble for Injuries sustained by a sailor
while obeying the orders of the mate
negligently given); The Walla
Walla, 46 Fed Rep. 198 (second mate
deemed the fellow servant of a long-
shoreman whom he did not hire,
Where he is merely engaged in rush-
ing the work without having the
superintendence of it); Carlson v.

United &c. Pilots' Assn., 93 Fed.
Rep. 468 (mate in charge of a
pilot boat, attempting to take a pilot
from an outgoing vessel, deemed a
fellow servant of the men in the
yawl) ; The Miami, 93 Fed. Rep. 218;
s, c. 35 C. C. A. 281; affg s. c. 87
Fed. Rep. 757 (mate and boatswain,
the latter injured through the negli-
gence of the mate in managing a
chain in lowering the topmast) ;
The Egyptian Monarch, 36 Fed. Rep.
773 (a second mate superintending
the work of reeling in a hawser is a
fellow servant with a seaman turn-
ing the reel on board ship). Con-
trary decisions are met with which
hold that the mate of a vessel is not
a fellow servant of a deck-hand or
sailor with respect to the details of
operating the vessel: Daub v. North-
ern Pac. R. Co., 18 Fed. Rep. 625;
but they are believed to be unsound.

*• Stevens v. San Francisco ftc. R.
Co., 100 Cal. 554; s. c. 35 Pac. Rep.

*Mellen v. Wilson's Sons ft Co.,
159 Mass. 88; s. c. 34 N. E. Rep. 96.
There was no testimony as to whose
duty it was to supply lanterns. The
plaintiff had complained of not be-
ing furnished with a lantern. He
had finished his work and was go-


Digitized by


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

§ 5185. Winchman Employed by Ship-Owner, and Stevedore or
Stevedore's Employes. — A stevedore is understood to be an independ-
ent contractor who takes the job of loading or unloading a vessel.
Plainly, a winchman on the ship or on the wharf, employed and fur-
nished by the owner of the ship, is not a fellow servant either of the
stevedore himself, 21 of a laborer, or of a longshoreman employed by
the stevedore, because they are servants of different, masters; but if
the employ 6 of the stevedore* is injured through the negligence of the
winchman, the ship or its owner will be liable. 22 There are, however,
decisions which ascribe the relation of fellow servant to these two
different classes of persons. 28

§5186. Superintendent of Loading and Men in the Hold. — A

superintendent of the work of loading cotton on a ship by having
bales thrown through the hatchway into the hold of the vessel, is not
a fellow servant of the laborers in the hold, where he represents the
company in the duty of furnishing a sufficient supply of employes to
effect the work with reasonable safety to those working in the hold. 24

§ 5187. Employe* of Stevedore and Crew of VesseL — The employes
of a stevedore who has the contract of unloading a vessel, and mem-
bers of the crew of the vessel, are not fellow servants, because they
are servants of different masters. 25 There are decisions to the con-
trary, but they seem to be unsound, because they apply the fellow-
servant doctrine to the servants of different masters who are merely
con-aSsociated in their work. 2e

ing to his bunk when the accident
occurred. The opinion classes a coal-
trimmer and the engineer as fellow
servants under these circumstances:
Mellen v. Wilson's Sons & Co. f supra.

21 The Victoria, 69 Fed. Rep. 160.

"The Lisnacrieve, 87 Fed. Rep.
570; McGough v. Ropner, 87 Fed.
Rep. 534 (although the ship is un-
der charter, provided the owner re-
tains control and furnishes the offi-
cers and crew) ; The Anaces, 93 Fed.
Rep. 240; s. c. 34 C. C. A. 558; rev'g
s. c. 87 Fed. Rep. 565; Johnson v.
Netherlands &c. Nav. Co., 132 N. Y.
576; s. c. 43 N. Y. St Rep. 783; 30
N. E. Rep. 505;Lauro v. Standard
Oil Co., 74 App. Div. (N. Y.) 4; s. c.
76 N. Y. Supp. iOO. Compare The
Harold, 21 Fed. Rep. 428 (where the
ship was held not liable for the neg-
ligence of the winchman injuring
the employe* of the stevedore) .

*The«Furnessia, 30 Fed. Rep. 878
(stevedore only assisting in unload-


ing held a fellow servant of a boat-
swain in charge of a steam-winch
handling the cargo). But an in-
jury to a stevedore operating a
winch, received in consequence of
placing his hand where it is caught
by the cogs while turning his head
to watch the hatchway, caused by
the negligence of a fellow steve-
dore, stationed to let him know
when he is to set the winch in mo-
tion, is ascribed to the negligence
of a fellow servant: The Serapis.
51 Fed. Rep. 91; s. c. 8 U. S. App.
49; rev'g s. c. 49 Fed. Rep. 393.

*Cheeney v. Ocean S. S. Co., 92
Ga. 726; s. c. 19 S. E. Rep. 33; 44
Am. St. Rep. 113.

* Johnson v. Netherlands &c NaT.
Co., 57 Hun (N. Y.) 591; s. c. 32
N. Y. St. Rep. 916; s. c. afTd, 132
N. Y. 576; Cameron v. Nystrom,
[1893] A. C. 308.

"The Harold, 21 Fed. Rep. 428.
It appeared in this case that the

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§ 5188. Dock Superintendent and Stevedore. — It has been held
that a superintendent of a dock is not the fellow servant of a stevedore
Tvhom the superintendent employs as the agent of a ship-owner to
unload his ships. 27 But the omission of a dock superintendent to have
the wedge-shaped "mouthpiece" properly fastened to the skid or gang-
plank upon which trucks were drawn from a ship to the dock, by reason
of which a stevedore was injured, was negligence in the performance
of a mere, detail of work, and hence^that of a fellow servant, for which
the owner of the vessel was not liable, it having furnished suitable and
safe appliances, though it was not the stevedores' duty to rig the
skid. 27 *

§ 5189. Stevedore and Stevedore. — A stevedore injured while as-
sisting the crew of a vessel in replacing the floor of the between-deck
has been held not a fellow 'servant with a stevedore engaged in unload-
ing a cargo from the vessel. 28

§ 5190. Stevedore and Boatswain. — These are deemed to be fellow
servants when working together in con-association and in furtherance
of a single object. 29

§ 5191. Foreman of Stevedore and Longshoreman. — Where a long-
shoreman engaged in loading barrels on a ship by means of a rope,
was injured by the alleged rotten condition of the rope, which he
charged was due to the negligence of a foreman employed by steve-

members of the gang were pro- w McCampbell v. Cunard S. S.

cured by the stevedore, but were Co., 69 Hun (N. Y.) 131; s. c. 53

paid by the day by the ship, al- N. Y. St Rep. 330; 23 N. Y. Supp.

though this was done through the 477.

stevedore. Compare The Kensing- w a McCampbell v. Cunard S. S.

ton, 91 Fed. Rep. 681 (foreman of Co., 144 N. Y. 552; s. c. 64 N. Y. St.

a stevedore gang held to be a fel- Rep. 246; rev'g 8. c. 76 Hun (N. Y.)

low servant of a stevedore at work 609 (mem,); 58 N. Y. St Rep. 870;

loading). Where, in an action by 27 N. Y. Supp. 1112; which aff'd s. c.

a stevedore for an injury received 69 Hun (N. Y.) 131; 53 N. Y. St.

through the negligence of the drum- Rep. 330; 23 N. Y. Supp. 477.

man on a steamship, the complaint "The Terrier, 73 Fed. Rep. 265.

alleged and the answer admitted Compare The Kensington, 91 Fed.

that the drum-man was in the em- Rep. 681; The Phoenix, 34 Fed. Rep.

ploy of the steamship company, it 760.

was error to submit the question "The Furnessia, 30 Fed. Rep.

to the jury whether the drum-man 878. Stevedore was selected by boss

was the servant of the stevedore stevedore, but paid by ship, which

or of the steamship company, and was not loaded under a contract,

to charge that if he was subject but by men employed by the ship,

only to the orders of the stevedore Boatswain and stevedore were fel-

at the time, that ended the case: low servants, being "engaged in a

Lauro v. Standard Oil Co., 74 App. single operation, and each employed

Div. (N. Y.) 4; s. c. 76 N. Y. Supp. by the ship's owner to perform the

800. same": The Furnessia, supra.

VOL. 4 THOMP. NEG. — 70 1105

Digitized by LjOOQLC

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

dores to superintend the loading of the ship, but it did not appear
that the duty of inspection had been delegated to such foreman,— it
was held that, under the circumstances of the case, the plaintiff and
the foreman were fellow servants. 80

§ 5192. Employ^ of a "Boss Scooper" and Member of the Crew.—

An employe of a "boss scooper," who has the entire charge of the
work of elevating grain out of vessels into an elevator, and who em-
ploys, discharges and pays his laborers, is not a fellow servant with a
member of the crew of a vessel who, though engaged in sweeping the
grain from the deck of the vessel, is not subject to the control of the
boss scooper; so that for such deck-hand's negligence, resulting in
death to an employ^ of the boss scooper at work in the hold, the own-
ers of the vessel are liable. 81

§ 5193. Grain-Shoveller and Captain of a Steam-Tug. — The rela-
tion of fellow servants has been ascribed to a laborer who shovelled
grain for an elevator company and the captain of a tug owned by the
company engaged in bringing a vessel to the elevator. 82

§ 5194. Carpenter and Boilermaker on the Same Ship. — There is
a doubtful decision to the effect that a carpenter employed in fitting
casings about a patch upon a tank in the hold of a ship is a fellow
servant with a boilermaker engaged in putting a patch upon such
tank, who at times voluntarily assisted such carpenter, although such
boilermaker is in the employ of a third person who charges for his
time by the day's work, and the carpenter is paid by the month, as
both are substantially in the employ of the ship-owners and subject
to their control. 88 If this decision is sound, then mere con-association
creates the relation of fellow servants within the meaning of the rule
under consideration, although the men are servants of different

§ 5195. Pilot and Deck-Hand. — A pilot in charge of the course of
a ship is not a fellow servant of a deck-hand in such a sense as to
prevent the deck-hand from sustaining a libel against the ship for
an injury due to the negligence of the pilot 84

80 Kelly v. Hogan, 37 Misc. (N. "Baltimore Elevator Co. v. Neal,

Y.) 761; s. c. 76 N. Y. Supp. 913. 65- Md. 438.

81 Kane v. Mitchell Transp. Co., •» The Coleridge, 72 Fed. Rep. 676.

90 Hun (N. Y.) 65; s. c. 35 N. Y. "The Titan, 23 Fed. Rep. 413;

Supp. 581; 70 N. Y. St. Rep. 203; s. c. 23 Blatch. (U. S.) 177.
s. c. aff'd, 153 N. Y. 680.


Digitized by LjOOQLC


§ 5196. Dry-Dock Foreman and Dry-Dock Laborer. — The foreman
of a dry dock has been held to be a fellow servant of a laborer assist-
ing in the work of raising a vessel in the dock, in such a sense as to
preclude a recovery by the laborer for an injury sustained in conse-
quence of the negligence of the foreman. 86

§ 5197. Captain of a "State Boat" and a Laborer. — The captain
of a State boat in New York and a laborer engaged in digging clay
from a bank and loading it upon the boat have been held to be fellow
servants ; so that where the captain set the laborer to work upon the
bank and the captain had loosened the overhanging earth to such an
extent that it fell upon the laborer, the State was not liable, although
but for the operation of the fellow-servant doctrine it might have
been. 88

§ 5198. Engineer Repairing Machinery on a Coal-Dock and La-
borer Repairing a Chute Connected with the Dock. — These have been
held to be fellow servants. 87

* Hart v. New York &c. Dry Dock w Porter v. Silver Creek &c. Coal

Co., 48 N. Y, Super. 460. Co., 84 Wis. 418; s. c. 54 N. W. Rep.

"Loughlin v. State, 105 N. Y. 1019.
159; s. c. 11 N. E. Rep. 271.


Digitized by LjOOQLC

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




5202. Bridge foreman and bridge


5203. Carpenter: head carpenter

and a mill-hand.

5204. Carpenter and elevator-boy.

5205. Carpenter and riveter en-

gaged in ship-building.

5206. Carpenter and rubbish-cleaner.

5207. Carpenters replacing planks

about machinery and ma-

5208. Chain-gang boss and chain-

gang prisoner.

5209. Chemist and laborer em-

ployed in a mill.

5210. Coal-passer and chief engi-


5211. Coal-yard, foreman and em-

ployes in.

5212. Contractor and sub-contractor,

employe's of.

5213. Contractor with a dock com-

pany and the dock company,
employes of.

5214. Convicts and persons volun-

tarily laboring with them.

5215. Day shift and -night shift,

members of.

5216. Day-workman and night-


5217. Electrical workmen. •

5218. Elevator, engineer operating,

and farm laborer.

5219. Elevator-operator and other

servants of the same mas-

5220. Elevator-operator and cham-



6221. Elevator-operator and elec-
trician and engineer en-
ployed in a hoteL

5222. Elevator, superintendent of
construction of, and work-
man subject to his orders.

6223. Employes cleaning out a pit
and employe 1 feeding a ma-

5224. Engineer and workman en-

gaged in drawing cars load-
ed with rock up an incline.

5225. Engineer in charge of ma-

chinery and machinist or
other workmen.

5226. Engineer in manufacturing

establishment and a su-

5227. Engineer in printing-estab-

lishment and printer and

5228. Engineer in a shop and one

employed at work therein
5229.. Engineer of steam-roller and

5230. Excavation, superintendent ot

and laborer.

5231. Excavators and brick-layer en-

gaged on a sewer.

5232. Excavators and pipe-layers.

5233. Excavator and sheathers.
Fireman in charge of boiler

and helper at machine-drill.
Flouring-mills, servants en-
ployed in and about.

5236. Gas-pipe fitter and gas com-

pany, employes of.

5237. Hod-carrier and truck-driver.



Digitized by



[2d Ed.


5238. Hoisting-machine, engineer

operating, and common la-

5239. Hoisting-machine, engineer

operating, and foreman of
building contractor.

5240. Laundress and driver of her

master's wagon conveying
her to her work.

5241. Lumber camp, foreman of,

and men operating a log-

5242. Lumber-piler and lumber-


5243. Lumber-yard boss and work-


5244. Machinist and workman

whom he calls to his assist-

5245. Ttfason and carpenter.

5246. Masons and ditch-diggers.

5247. Mason and hod-carrier.

5248. Mason and his "tender."

5249. Men of all grades working to-


5250. Millwright and mill-operator.

5251. Municipal employes.

5252. Painters and other workmen

on the same structure.

5253. PlumbeVs and scrub-woman.

5254. Porter and another porter op-

erating an elevator in the
same store.


5255. Repairer of machinery and

operator thereof.

5256. Repairers of the same ma-


5257. Scaffolding or staging, build-

ers of, and general work-
52f58. Servant hired out and serv-
ant of the hirer.

5259. Street commissioner and

street laborers.

5260. Substitute of a servant and

another servant.

5261. Telegraph-lineman and other


5262. Telegraph-lineman and super-


5263. Telegraph-repairers and quar-


5264. Travelling salesman and me-


5265. Tunnel-boss and workman in

a tunnel.

5266. Tunnel, workman in, and en-

gineer on surface operating

5267. Watchman of show and "show


5268. Various other illustrations of

the fellow-servant doctrine.

5269. Further illustrations of the

fellow-servant doctrine.

5270. Further illustrations of the

fellow-servant doctrine.

Bridge Foreman and Bridge Carpenter. — It has been held
that a bridge carpenter could not recover for the negligence of a
bridge foreman in permitting a jack-screw to fall which had been
set up by the two men, and which the foreman had agreed to watch,
they being fellow servants. 1

§5203. Carpenter: Head Carpenter and a Mill-Hand. — It has

been held that the head carpenter at a mill, although engaged in
making repairs on his master's vessel, which is close by, is still a fel-

^eirce v. Oliver, 18 Ind. App. 87; s. c. 47 N. B. Rep. 485.


Digitized by


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

low servant of a mill-hand, at least while he is engaged in the mill
sawing lumber for such repairs. 2

§ 5204. Carpenter and Elevator-Boy. — A carpenter working upon
an elevator-shaft in a building in course of construction, and the boy
running the elevator, are fellow servants. 8

§5205. Carpenter and Riveter Engaged in Ship-Building.—

Where a carpenter and riveter are engaged in ship-building they are
deemed fellow servants in such a sense as to preclude recovery by the
riveter of damages from the master foT an injury caused by the negli-
gence of the carpenter in constructing a scaffold on jriiich the riveter
works. 4

§ 5206. Carpenter and Rubbish-Cleaner. — It has been held that a
carpenter employed in the construction of a building is not a fellow
servant of one employed to clean up the premises and remove the
rubbish. 5

§ 5207. Carpenters Replacing Flanks about Machinery, and Ma-
chine-Oilers. — Members of a "carpenter gang," whose duty it is to
replace planks about a machine called the "bloom rolls," after their
removal for the purpose of attaching new rolls, are not fellow serv-
ants of one employed to oil the machine; but their negligence in re-
placing the planks is chargeable to the master. 8

§5208. Chain-Gang Boss and Chain-Gang Prisoner. — A chain-
gang boss is not a fellow servant of a chain-gang prisoner ; and if the
prisoner is killed or injured through the negligence of the boss, the
employer of the chain-gang will be liable. 7

§ 5209. Chemist and Laborer Employed in a Mill, — A laborer was
engaged in completing machinery in a paper-mill, when the chemist
of the company, entering the mill, improperly set the machinery in
motion. The chemist was not directly shown to have had any general

•Sayward v. Carlson, 1 Wash. 29; Y. Supp. 668; s. c. 32 Misc. (N. Y.)

s. c. 23 Pac. Rep. 830. 235.

'Hughes v. Fagin, 46 Mo. App. e Eingartner v. Illinois Steel Co.,

37. 94 Wis. 70; s. c. 34 L. R. A. 503;

4 Beesley v. Wheeler, 103 Mich. 1 Chic. L. J. Wkly. 695; 14 Nat

196; s. c. 27 L. R. A. 266; 61 N. W. Corp. Rep. 275; 68 N. W. Rep. 664;

Rep. 658. But see ante, § 3947, et 59 Am. St. Rep. 859.
8eq. 7 Boswell v. Barnhart, 96 6a. 521;

6 Spillane v. Eastman's Co., 65 N. s. c. 23 S. E. Rep. 414.


Digitized by LjOOQLC


power or authority, either over the employes of the mill or the opera-
tion of the machinery, such matters being in charge of a superintend-
ent. It was held that the chemist was a fellow servant of the employ^,
who was killed by being caught in the machinery. 8

§ 5210. Coal-Passer and Chief Engineer. — It has been held that a
coal-passer at the boilers of a manufacturing establishment is hot a
fellow servant of the chief engineer in charge of the factory. 9

§ 5211. Coal-Yard, Foreman and Employes in. — Where employes
in a coal-yard, under the direction of a foreman, were engaged in

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 151 of 165)