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Commentaries on the law of negligence in all relations online

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Rep. 165 (foreman of switching- 1893, p. 68.

crew and switchman of another 1W Kansas City &c. R. Co. v.

crew); St. Louis &c. R. Co. v. Thur- Becker, 67 Ark. 1; s. c. 46 L. R.

mond, 70 Ark. 411; s. c. 68 S. W. A. 814; 53 S. W. Rep. 4Q6.

Rep. 488 ("flre-knocker," who had 107 St. Louis &c. R. Co. v. Furry,

no authority over other employes, 114 Fed. Rep. 898; s. c. 52 C. C.

Injured by negligence of a "hos- A. 518.
tier," who had supervision over


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

ployed, nor in consequence of the negligence o3f another person em-
ployed by the same employer in the same general business, unless he
has neglected to use ordinary care in the selection of the culpable
employ^." Thus, a carpenter engaged in inclosing an elevator-shaft
within a frame for the owner of a building, and the operator of
the elevator, in the employ of such owner, were held to be persons
"employed in the same general business," and hence fellow serv-
ants. 10Ta This statute, it will be perceived, is simply an affirmance
of the rule of the common law. 108 But it has received a construc-
tion which is contrary to the views of many American courts as to
what the common law is. These courts, as we have seen, 109 hold
that where the master delegates to an agent the entire control of
his business, including the power to employ and discharge serv-
ants, such agent is not a fellow servant with those whom he employs,
but is the representative of the master in such a sense that his neg-
ligence is the master's negligence. In construing this statute, the Su-
preme Court of California ignore this rule. Thus, a declaration al-
leged that the defendants were the owners of a certain mine, which
they W9rked by their superintendent, who had full power to control
the working of the mine, and to employ and to discharge hands at
discretion; that all the hailds in the mine, employed by the defend-
ants, were employed by the superintendent; and that the engineer
and the defendants and the superintendent knew this to be the case
before the injury complained of. It then recited that the plaintiffs
intestate was killed through the incompetency, or want of skill, of
the engineer. It was held that the declaration was bad, the court
saying: "The complaint counts on the negligence and want of skill
of Westlake, the engineer, knd that defendants did not use ordinary
skill in selecting Westlake. But, as we have seen, Westlake was em-
ployed by, and was under the direction of, Clenden, the superintend-
ent, and there is no averment that the defendants were negligent in
employing and selecting Clenden." 110 The doctrine of this case was
reiterated in a subsequent case in the same court, — namely, that, in
order to make the master liable, there must have been a want of or-
dinary care on his part in the selection of the culpable employ^, and
that it makes no difference whether this employe was of a grade su-
perior to the' injured employe or not. 111 Thus, the foreman of a
mine, having authority to employ and discharge hands, fired a blast
about three hundred yards from where the plaintiff, an employ^,

lw aMann v. O'Sullivan, 126 Cal. "° Collier v. Stienhart. 51 Cal. IIS.

61; s. c. 58 Pac. Rep. 375. m McLean v. Blue Point Gravel

in Ante, § 4846. ' Min. Co., 51 Cal. 255.
w Ante t § 4946.


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was working, without giving him notice that it was about to be dis-
charged. For the injury thus caused it was held that the company
was not liable, it having been found as a fact, by the court below
which tried the case, that the company had not been negligent in se-
lecting the foreman. 112 So, a railway section-foreman, although hav-
ing undisputed control of the men under him, with authority to hire
and discharge them, is a fellow servant with the men under him,
and there can be no recovery for the death of one of them, occasioned
by the foreman's negligently leaving a switch open, so that a pas-
senger train runs upon the switch-track and collides with a hand-
car. 118 This places upon the statute a construction conforming
to the English rule. A tendency is discovered in some of the
later decisions, however, to hold the master responsible for the
negligence of one to whom he has abdicated the entire charge
and control of his business, or a separate and distinct department
thereof, with the authority to employ and discharge servants. 115
A distinction is made, too, between those duties owing person-
ally by the master, and those the performance of which he can
delegate. Under the former description come the duty of furnish-
ing reasonably safe machinery, 118 and reasonably safe and suitable
appliances, 117 and the duty to warn and instruct employes who are
inexperienced in the work they are required to perform; 118 and the
master cannot escape liability for the negligent performance or non-
performance of such duties by the servant to whom he has entrusted
their performance.

§ 5292. Under the Florida Code. — The third section of the Florida
statute defining the liabilities of railway companies in certain cases,
allows a recovery to any employe who is injured by the negligence
of any other employ^ in running the. locomotives or cars, or other
machinery, of such company, the injured servant being himself free
from fault. 120 It is held that the second section of the statute, al-

m McLean v. Blue Point Gravel U9 Beeson v. Green Mountain

Mln. Co.. 51 Cal. 255. Gold Min. Co., 57 Cal. 20.

1W Daves v. Southern Pac. Co., 98 11T Tedford v. Los Angeles Elec-

Cal. 19; s. c. 32 Pac. Rep. 708. trie Co., 134 Cal. 76 (failure of su-

lu McKune v. California Southern perior servant to furnish rubber

R. Co., 66 Cal. 302 (train-despatcher gloves to an electrical lineman),

and material-man, having author- 118 Tedford v. Los Angeles Elec-

ity to employ and discharge men, trie Co., 134 Cal. 76 (superior serv-

and to direct the movements of ant required inexperienced employe

trains, is not a fellow servant with to scrape an electric wire without

an ordinary track laborer under warning or instructing him as to

his control) ; Brown v. Sennett, 68 the danger) ; Ingerman v. Moore,

"Cal. 225. 90 Cal. 410.

120 Pla. Rev. Stat. 1892, Appendix,
p. 1009; Laws 1891, ch. 4071, § 3.

VOL. 4 THOMP. NEC— 73 1153

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

lowing a recovery to "any person" under the same circumstances, and
providing that the damages shall be apportioned where both parties
are at fault, has no application to the case, of an employe who is in-
jured, but he must be free from contributory negligence in order to
a recovery. 121

§ 5293. Under the Georgia Code. — The Code of Georgia contains
the following provisions : "Railroad companies are common carriers,
and liable as such. As such companies necessarily have many em-
ployes who cannot, possibly control those who should exercise care
and diligence in the running of trains, such companies shall be lia-
ble to such employes, as to passengers, for injuries arising from the
want of such care and diligence." 122 In a subsequent article there is
this provision : "The principal is not liable to one agent for injuries
arising from the negligence or misconduct of other agents about the
same business. The exception in the case of railroads has been pre-
viously stated." 128 In a subsequent title the following provisions
occur : "A railroad company shall be liable for any damages done to
persons, stock, or other property, by the running of the locomotives,
or cars, or other machinery of such company, or for damage done by
any person in the employment and service of such company, unless
the company shall make it appear that their agents have exercised
all ordinary and reasonable care and diligence, the presumption in
all cases being against the company." 124 "If the person injured is
himself an employe of the company, and the damage was caused by
another employ^, and without fault or negligence on the part of the
person injured, his employment by the company shall be no bar to
the recovery." 125 The import of these very emphatic provisions is
perfectly obvious. "They declare in unmistakable terms," say the
Supreme Court of Georgia, "that any employ^ who is free from fault
can recover for the negligence of any other employe, without respect
to whether the two were engaged about the same business or not.
This is the invariable rule that holds between railroad companies and
their employes under our Code." 126 Thus, it is held that employes of

m Duval v. Hunt, 34 Fla. 85; s. "•Ga. Code 1895, $ 2323; Code

c. 15 South. Rep. 876; Florida &c. 1882, § 3036.

R. Co. v. Mooney, 40 Fla. 17; s. m Georgia R./fcc. Co. v. Goldwire.

c. 24 South. Rep. 148; 12 Am. ft 56 6a. 196. To the same effect, see

Bng. R. Cas. (N. S.) 721. Marsh v. South Carolina R. Co., 56

a »Ga. Code 1895, § 2297; Code Ga. 274; Georgia R. &c. Co. v.

1882, § 2083. Rhodes, 56 Ga. 645; Georgia R. ftc.

»Ga. Code 1895, § 3030; Code Co. v. Brown, 86 Ga. 320; s. c 12

1882, § 2202. S. E. Rep. 812; Georgia R. ftc. Co.

m Ga. Code 1895, § 2321; Code v. Cosby, 97 Ga. 299; s. c. 22 S. EL

1882, S 3033. Rep. 912 (that negligence of co~


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[2d Ed.

a railroad company may recover for injuries caused by the negligence
or misconduct of their fellow servants, whether such injuries are con-
nected with the running of trains or not; 126a or though the employes
concerned are engaged in a business not immediately connected with
the operation of the compagy's trains. 12flb

§ 5294. Under the Iowa Cod«. — Formerly, in this State, the rule
of the common law prevailed, that a master is not liable to his serv-
ant for an injury happening in consequence of the negligence of. a
fellow servant engaged in the same general employment. 127 This
rule was not changed by the statute of 1853, which made every rail"
road corporation liable "for all damages sustained by any person in
consequence of any neglect of the provisions of this act, or of any
neglect of any of their agents, or by any mismanagement of their
engineers, to the person sustaining such damages/' 128 But in 1862
the Legislature enacted that "every railroad company shall be liable
for all damages sustained by any person, including employes of the
company, in consequence of any neglect of the agents, or by any mis-
management of the engineers or other employes, of the corporation,
to any person sustaining such damage ;" 120 and by another section of
the Code the provisions of this section have been extended to all lessees

employfi was sole cause of injury
will not defeat action); Southern
R. Co. v. Johnson, 114 Ga. 329; s.
c. 40 S. E. Rep. 235 (injury because
of defective work of coemploySs).
As to local jurisdiction, see Thomas
v. Georgia R. ftc. Co., 38 Ga. 222.
As to jurisdiction over the West-
ern ft Atlantic Railroad, see Walker
v. Spullock, 23 Ga. 436. It has been
held that a Georgia company char-
tered to carry on a general lumber-
ing business is not a railway com-
pany, and is not liable as such to
an employ^ injured in the transpor-
tation of lumber by a locomotive
used for that purpose by the com-
pany, although its charter also au-
thorizes it to use and operate lo-
comotives on tramroads and rail-
roads in connection with its gen-
eral business, — its liability in such
case being under the. general law
relating to masters and servants:
Ellington v. Beaver Dam Lumber
Co., 93 Ga. 53; s. c. 19 S. E. Rep.
21. In order to a recovery under
these statutes it is said that the
Injured employ^ must have been
free from negligence immediately,

remotely, directly, or indirectly
contributing to the injury: Walker
v. Atlanta ftc. R. Co., 103 Ga. 820;
s. c. 4 Am. Neg. Rep. 26; 11 Am.
ft Eng. R. Cas. (N. S.) 498; 30 S.
E. Rep. 503.

"•a Georgia R. ftc. Co. v. Ivey, 73
Ga. 499.

"•b Georgia R. ftc. Co. v. Hicks, 95
Ga. 301; s. c. 22 S. E. Rep. 613. Evi-
dence on which it was error to
grant a nonsuit, in an action against
a railway company for personal in-
juries alleged to have been caused
by the negligence of a person desig-
nated in the petition as a fellow
servant of the plaintiff, — such an
action being authorized by statute:
Chandler v. Southern R. Co., lia
Ga. 130; s. c. 38 S. E. Rep. 305.

1,7 Sullivan v. Mississippi ftc. R*
Co.. 11 Iowa 421.

128 Sullivan v. Mississippi ftc. R.
Co., supra.

"•Laws Iowa, 9th Gen. Assem.,
ch. 169, § 7; carried into the Code of
1873, at § 1307, and into the Code
of 1897, at § 2071, with some modi-
fications and additions.


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

or other persons owning or operating railways. 180 This statute, in so
far as it embraced persons engaged in the hazardous business of operat-
ing railroads, was held to be a valid exercise of legislative power;
and when thus limited, it was not open to the objection that it. was
class legislation. 181 But if it were to be construed as embracing per-
sons engaged in labor not connected with railway service, it would
be obnoxious to a constitutional prohibition of class legislation, be-
cause it would make a railway company liable for injuries to serv-
ants in situations where other employers Would not be liable. 182 Con-
forming to the limitation thus put upon it by the Supreme Court,
the statute was carried into the Code of 1873, and subsequently in-
to the Code of 1897, in the following language: "Every corporation
operating a railway shall be liable for all damages sustained by any
person, including employes of such corporation, in consequence of
. the neglect of the agents, or by any mismanagement of the engineers
or other employ6s thereof, and in consequence of the willful wrongs,
whether of commission or omission, of such agents, engineers, or

"• Iowa Code 1897, § 2039.

m "If there is an employer and
employ^, but no business of a rail-
road company to be engaged in, then
the case is not within the act. But
the same liability is extended by the
act, upon the same terms, to all
in the same situation": McAunich
v. Mississippi ftc. R. Co., 20 Iowa
338. In another case, it was held
that the term employe "applies to
conductors, agents, superintend-
ents, and others engaged in operat-
ing the road, and the like, and not
to contractors, or persons building
or constructing the road-bed, or lay-
ing down the ties and rails": Ney v.
Des Moines &c. R. Co., 20 Iowa 347
[but compare McKnight v. Iowa &c.
Const Co., 43 Iowa 406 (construc-
tion company running special
trains)]. And it was the statute,
as thus limited, that was held con-
stitutional: Deppe v. Chicago ftc.
R. Co., 36 Iowa 52, 55; Schroeder
v. Chicago &c. R. Co., 41 Iowa 344;
s. c. 47 Iowa 375, 383; Potter v.
Chicago &c. R. Co., 46 Iowa 399.

"• Deppe v. Chicago &c. R. Co., 36
Iowa 52, 55. "If," said Cole, J.,
"the statute should be so construed
as to apply to all persons in the
employ of railroad corporations,
without regard to the business they
were employed in, then it would be
a clear case of class legislation, and


would not apply upon the
terms to all in the same situation,
and hence would be unconstitu-
tional, and manifestly so. To illus-
trate: Suppose a railroad company
employ several persons to cut the
timber on its right of way, where
it is about to extend its road, and
the land-owner employs a like num-
ber of persons to cut the timber on
a strip of equal length alongside
such right of way. If one of each
set of employes shall be injured by
the negligence of a coemployg, and
the employe of the railroad com-
pany can, under the statute; main-
tain an action against his employer,
and the other cannot, then it is
clear that the law does not apply
upon the same terms to all in the
same situation. The law, then,
would not have uniform operation,
but would be violative of the Con-
stitution just as much as a law that
should prescribe, under the same
circumstances, different liabilities
for merchants, for mechanics, and
for laborers. The manifest purpose
of the statute was, to give its ben-
efits to employes engaged in the
hazardous business of operating
railroads. When thus limited, it is
constitutional; when extended fur-
ther, it becomes unconstitutional":
Deppe v. Chicago &c. R. Co., supra.

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other employes, when suqh wrongs are in any manner connected with
the use and operation of any railway on or about which they shall
be employed; and no contract which restricts such liability shall be
legal or binding." 188 The statute as thus amended has been held to
be constitutional by a Federal court. 184 The benefits of this statute
. are held to extend to all employes who are engaged in the business
of operating railroads, or who are by the nature of their employment
exposed to the hazards incident to moving trains. 185 Under this rule
a private detective in the employ of a railway company, who, while
walking along the track in the course of his duty, was overcome by
the heat and fell on the track, and was run over through the negli-
gence of the engineer of a passing freight-train, was entitled to a
recovery; 186 and so in the case of a person employed to remove mow and
ice from the track, who was injured through the negligence of em-
ployes of the road, though the train upon which the negligent serv-
ants were employed was not in motion at the time, and the plaintiff was
not then engaged in the duties required of him ; 18T and so in the case of
an employe in a car-shop, injured by the negligence of those in
charge of a train standing at a station, while he is engaged in re-
moving screens from the cars; 188 and so in the case of an employ^
who stepped upon the track to avoid a runaway team, and was struck
and injured by a hand-car in consequence of the negligence of those
running it. 180 The following employes of railway companies were
held to have been engaged in the "use or operation" of the road, so
as to be entitled to damages for injuries inflicted on them through
the negligence of coemploy£s: — An employ^ engaged in the work of
repairing the track ; 140 a person .engaged in the work of, taking down
and removing a bridge, who was compelled by orders of his superior
to go upon one of the company's trains, and who while so riding was
injured; 141 a section-hand, injured by reason of the negligence of
the foreman under whom he was employed, in allowing a collision

"•Iowa Code 1897, § 2071; Code Iowa 223; s. c. 37 Am. St. Rep.

1873, § 1307. 198.

"♦O'Brien v. Chicago &c. R. Co., "'Smith v. Humeston &c. R. Co.,

116 Fed. Rep. 502. 78 Iowa 583; s. c. 43 N. W. Rep.

m Smith v. Humeston Ac. R. Co., 545; 41 Am. ft Eng R. Cas. 278.

78 Iowa 583; s. c. 43 N. W. Rep. "• Pierce v. Central R. . Co., 73

545; 41 Am. ft Eng. R. Cas. 278; Iowa 140; s. c. 34 N. W. Rep. 783.

Jensen v. Omaha &c. R. Co., 115 "•Moore v. Iowa Cent. R. Co., 47

Iowa 404; s. c. 88 N. W. Rep. 952 Iowa 688.

(hostler failed to notice switch was /"Frandsen v. Chicago &c. R. Co.,

open, and ran engine into a stand- 36 Iowa 372; Haden v. feioux City

ing car on a side-track, injuring a &c. R. Co., 92 Iowa 226; s. c. 60 N.

car-cleaner at work therein — recov- W. Rep. 537 (section-foreman),

ery). 14X Schroeder v. Chicago &c. R. Co.,

"■Pyne v. Chicago &c. R. Co., 54 47 Iowa 375; s. c. 41 Iowa 344.


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

between a hand-car and a flat-car used in the work of repairing the
road; 142 men engaged in coupling locomotive-tanks, which formed a
necessary part of a train, so that they could be moved to their proper
place for train service; 148 one of two railroad employes whose du-
ties required them to All tenders with coal from cars on an adjoin-
ing track, in pushing into a coal-car, so as to injure the other em-
ploye, a plank extending from the coal-car to the tender and used in
filling the tender, after the work had been completed and the engine
was about to start; 144 an employ6 whose duty it was to assist in load-
ing and unloading gravel-cars, and to perform any other service re-
quired of him in or about such work, and to ride back and forth on
such cars ; 14B an employ^ engaged in transferring rails from one car to
another by means of a locomotive which moved along the track and
drew the rails by means of an attached rope; 145 * one employed to
carry water to a gang of men engaged in building a stone retaining-
wall near the approach of a bridge, and injured through the negligent
running of a train over the bridge at a dangerous speed, the bridge
being insecure through the negligence of the "iron gang," who were at
work on the bridge. 145b A running of special trains over a railway by a
construction company, while engaged in building it, is "operating a
railway" within the meaning of the statute ; and a person engaged in
shovelling gravel from the cars of such a train is within the con-
stitutional scope of the statute. 146 So, the working of a ditching-
machine on a railroad, which is operated by the movement along the
track of the train of which it forms a part, is an employment "con-
nected with the use and operation" of the railroad. 147

ltt Larson v. Illinois Cent. R. Co., "*Akeson v. Chicago &c. R. Co.,

91 Iowa 81; s. c. 58 N. W. Rep. 1076; 106 Iowa 54; s. c. 4 Am. Neg. Rep.

Smith v. Chicago &c. R. Co. (Iowa), 384; 11' Am. & Bng. R. Cas. (N

80 N. W. Rep. 658 (no off. rep.) S.) 430; 75 N. W. Rep. 676.
(section-hand injured in collision ""Handelun v. Burlington Sec. R.

between two hand-cars) [following Co., 72 Iowa 709; s. c. 32 N. W. Rep.

Larson v. IUinois Cent. R. Co., 4.

. supra]; Lombard v. Chicago Ac. R. 145 aStebbins v. Crooked Creek R

Co., 47 Iowa 494 (employe* injured &c. Co., 116 Iowa 513; s. c. 90 N. W.

in collision of two hand-cars, one Rep. 355.

of which ran upon the other from 145 bKeatley v. Illinois Ac. R. Co..

behind at a high rate of speed, — 94 Iowa 685; s. c. 63 N. W. Rep.

the negligence of the coemploye' for 560 (train left track and struck

which damages were given consist- derrick near which plaintiff was

ing in not calling to the brakeman working).

on the hind car to apply the brakes, ."* McKnight v. Iowa &c. Const

when he observed that such brake- Co., 43 Iowa 406.
man did not see his signal). MT Nelson v. Chicago &c. R. Co., 73

148 Butler v. Chicago &c. R. Co., Iowa 576; 8. c. 35 N. W. Rep. 611.
87 Iowa 206; s. c. 54 N. W. Rep.


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§ 5295. Further Decisions under the Iowa Code.— It has been held
that the following railway employes were not engaged in the "use or
operation" of the road, and hence were not entitled to recover dam-
ages under the statute: — An employ^ at work in a railway repair-
shop, — his remedy, if any, being under the principles of the common
law; 148 a car-repairer who had nothing to do with the cars while in
motion, except to ride on them to and from the place where his serv-
ices were required; 140 a section-hand while engaged in loading a
car; 160 one whose sole duty it was to elevate coal to a platform con-
venient for delivery to engines; 151 one employed in a railroad coal-
house to load coal on cars; 1 * 2 an engine-wiper in a roundhouse, em-
ployed to clean engines, and to open and close the roundhouse doors,
— with the conclusion that he could not recover for the negligence
of a fellow servant engaged in similar work ; 158 a sweeper in a round-
house, who was injured by falling into a hole alleged to have been
negligently left uncovered by other employes. 154 The following acts
have been held not to be "connected with the use and operation" of a
railroad :— The act of a section-hand, riding on a hand-car, in willfully
striking, while engaged in an argument, another employ^, who, in
attempting to avoid the blow, pushed the plaintifE off the car, — such
act not being willful, as to the plaintiff ; nor was it within the scope
of the wrong-doer's duty, or, in other words, "connected with the op-
eration of the road"; 155 the act of one member of a construction-
gang in negligently throwing a stone on a fellow servant's hand; 156
the handling of a derrick in coating an engine; 157 wiping locomo-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 157 of 165)