BUCKLEY V. GOULD & CUnR'Y SILVER MINING
00.'833
An'd if you should find, .as facts ih the case, that at the time of the wagon accident the notiully recovered from a previous injury, and that his complete recovery therefrom was retarded or prevented by his fall from the wagon, or that as the result of a previons injury he had chi6nic or 1atentinflammation; which, in the course of nature, would have develop'Eid slowly, and that as the direct result of the wagon accident the disease was'developed soonera.Iid in a more acute form than it would otherwise have done, sueh facts may be taken into consideration by you as elements of damtige, if you find the plaintiff to reCl/ver. . So, gentlemen, if your conclusionsball be that the plaintiff is en.titled to' 'a you take this question of damages, lind, in: the light of all 'the evidence,de'tertnine what amoul:H, within tlie rules and limitations Ihavllstated, the)plaintiff is fairly andreason'ably entitled to recover as c()Inpensation for any injuries by the alleged negligence of the defendant at thetirhe of the rellce in questioil. · . ' . . " . Yetdictfor plaintiff for $4,500·
.BUCKLEY v. GOULD & OuRBYSn.viR
MINING
Co.
.
. 'Circuit Court,.]). Nef1adlJ. November 9. 1882.) 1. NEGJ.TGENCE OF FELLOW-SERVANT.
The employer is not liable to a for an injUry resulting from the negligence of It fellow-servant in the·.sarne: line ordepaI'tment of 'employment, provided the.employer exercises due care in the selection of competent servants. 2. WHO ARE FELLOW-SERVANTS.
The runner of..a steam-engine in lowering men ana material, and hoisting rock in sinking a shaft, is Qfellow-servant in the same line or department or'service, within the rule, with the men in the shaft engaged in excavating the shaft and loading the rock to be hOIsted. 3. No WARRANTy-ONLY DUE CARE ·REQ,UIRED. The employer does not warrant the of hl,s servants. He is only bound to exercise due care in the selection of careful and competent men for the service to be performed. . ' 4. EvIDENCE OF INCOMPETENCY. The that an accident occurred, though evidence of negligence that particular occasion, is not, by itself, sufficient evidence toallthorize a jury to find that the party so negligent is not a careful and competent man for the service in which he was engaged. '
v.14,no.14:-53
5; ·I:!I1STRl1C'l1ION-
Upon the close of plaintIff's testImony, If the evidence is Insufficient to justify averdict· for the court wUl'instruct thll jury to tind for the derfendant.' . L ' I. .t <.: \
Qf;
". . · .
'it·
),: '1'hiacase wllts, ,by a plaintiff's testimony thlil: tlw to the jury to find a th(ground that there was not sufficiellt ve,rdict test;imo.I\Y to. go 'tq I:thej'llfy :or, tpj ustify a :yerdict ,in favor of the
w. E: F. Deal, for ;
:.' ,
. the mO,tion ipstrllct tpe jprj tc) iJ,l this case: ,Tll,e ip lts he is this" 1"'.. ,tpe plaiAti1:f.inthis within the which.J!§f}erts; that the master the nl;lg!iis not liable for an injury resulting toona, gence of a fellow-servant in the same ,linB()f employment. We,. are fully satisfied that he is a fellow:servant within the principle 'and ,meaning of the rule. We have no doubt o'n that point. We do no$ think Hough v. Railway Co. 100 U. S. 213, cited by the plaintiff, militates against that proposition. On the contrary, we think it is an iA Jawro1: h,. ,thisThe court in that case recognizes the rule; it does not question it; it only notices the distinction whichitake8 that caSG out of the rule. Mr. Justice HARLAN, in delivering the opinion, that the English authorof, the immunity of ities ,go mUc:Jh the master.,fromthe responsibilityrior injuries received by a ser'\Tant inconsequence iof the of' his fellow-servant in the same line of ewployment, than the American courts. But the dacisiori in Hough v. Railwdy 09. i'aput upon an9thM 'ground, namely: that the act complained of iJl case was the act of the company itself. A corporation must always aot through its agents. The rule is recognized that the oompany is bound to use allrea80nable care and diligenc.e· in furnishing' suitable 'and safe machinery for its servants to work with.' 'In that case there,was a violation of that rule. The defendant did not furnish a good and. suffi,cient cowcatcher and steam-whistle., The ,accident occurred in consequence of th eimpTopercondition of the locomotive engine. The engine rail off 'the track by reason of a defective coW'ccatcher, r.rta the steam-whistle was blown or knocked off in consequence of not jbeing properly fast-
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BUCKLEY
v. Goui..b' '&fCUiui'Y'sIriv2n
MINING CO.
885'
ened, and tbeescaping hot steam', It was thedfitj'iof' £heMmpany'to 118e all reasollabledili:o' gence to furnish a , To furnish a safe 'engine: is one thing, but its mariagemlnit by.the engineer'is quite another. 'th'e'l engineer was simply an working with the machinery.': machinery had to be furnished by Those men in charge, furnishing and supervising the' engine, the agents of the 'corporation for that'lmrp'ose.. This .service :could' only be performed by a corporation through 'agents.: Thereforetbeir: acts,were the acts of the corvoration,and nbt',merelyof fellow':serk: antB. 'They were the acts of the corporation, through its agents', in i furnishing to work with. The'decision iaput upon' that; ground alone, and the! court recognizes it not being-within It would ha'Vebeen the same' in thi13ease 'U:theenginethat' was dsed f in this mine had been a old engine, out of order;; and the accident had resulted from the .use 'of that engine in quence of its defects.' ThElnthiscase would ha'V8'been' pi'ecisely liM" the one cited. . ' But the foundation of :thig·aCltion is that the accident was the suIt of the carelessness of the tnanwho the engine. He' was not an agent of the company. He had no authority ovetthe plaintiff. He was merely a'workInan rumiI'ng an engine direction of a chief engineer, a getieral foreman, ands. of the mine, It was not his business to furnish the engine. Reha1' no authority whatever; He wasco-operating with plaintiff in sinkin sink:ing the shaft. He was simply it. ing the shaft. .We 'do not think it makes 'siny difference whether he was running an engine, or working with a wheel and axle,a pulleY"' and bucket, or carrying the matethtl up and down: a. ladder upon his' shoulders. He was doing the same work, blit id(}ing it by differerit1 means, Every man below performed his part' of the work in sinkihg the shaft-the work in which they were all engaged. They were working together in the same depa1"tment in exca'\Tating this shaft. The fact that the engine-runne'r, ashe is called, was using a different: instrument in carrying the material up and supplies dow!l :d:ia1tes'no difference. It was wo!k d()ne'in a common end........the sinking of a shaft., One servant part, and another another. part. In the old Spanish mines, in early days, and even yet in some parts of Mexico and South America, the ore is carried in saaksupon' the backs of men by climbing up and down ladders, instead of using
886
In sinking this-shaft, if instead of th,e steam-engine used in oarrying down the fuse and powder for a blast-the work actually engaged in at ,the time of ,the accident,-or in raising the rock, the p.arty running the engine had gone. up and down a ladder, carrying the material used in mining dOWI;l, and the rock up, we apprehend th;:t>tno, one ,would that he was not a CQ-servant in sinking the shaft-that llewas not a common, j)ervice in same line.or department<>feDl:ployment with those bel9W. The, fact of using another appliance does not c,haracter of the it was the same ·. ,The authoj;itjes go to that extent. Take, the case of Woo4 v.' New Bedford Coat Co. l:H Mass. 252,. The a c.oaL by m-achinery,'operatedby' a steam-engine. ' yYhenit WaS. hoisted to a certain height ¥lall rurming the engine was ,to stop it. There was a man near the 'point where the coal was discparged to manage and ,I:lmpty thEl pleJlinS of a cranj,{. The engineer hoisted the bucket too high, so that Plljst the :pqint .he should have stopped, and thereby the man at the crank was struck by it and severely.injured. I.nth1i'l ,case the engine-runner and the man at the crank aiding, to dischargE!:the coal were tp be in the same depart, mmi1t9J(employment, and thl3company not liable.. That is in all retAis, .at leastsq, far px,inf}iple is concerned. Ag/l-in,in, Kelly Vo: 5PS, the "carpenters were wi:th :building a. furnished suitable ,the duty of );11;I,i14ipg the staging to the citr., who had ,carpenters Wl:lre supel:ill of. tbiestl1ging, t f1:o;tni negligence. <' by which thE) stagi.n,.g fell and injuJ;j3dsome of ,la.b.orers. They were within rule. In case--Holde.uv; Fitchb,urg R. R. 12D Mass. 268-the head-note reads: , ,II The rule of law that a servant cannot 'maintain an action against his master for'an iJljury ca\lsed l.>,y the fault· 'or negligence of a fel1@'w-servant is not the case of two servants workil+g in company, or baving OppOl'tunityto control or influence the conductof.each other, but extends to every case in which the two, their authority and tlielr, c6mpensation from the'samti sourcel are engaged in the same business, though hi different departments of duty; and it makes no difference, that the servant whose negligence causes the injury is a sub-manager or'foreman of authority the. pll\illtiff.
BUCKLEY V. GOULD & CURRY SILYER MINING CO.
837
"A corporation is not liable to brakeman on 'one of its' trains for setting up and ,use of a, dernck by workinjuries suffered, from the men employed in widening'its '
a
In this case parties were emploJed in'widening the road; and; for the purpose of performing that work, a derrick was That is no part of the business of running a railroad. It is rwiaenmg a road -enlarging its facilities." A train coming along; tbilNierrick feU, and a brakeman passing this wreckwaainjurfld·by a rope attached to the fallen derridk.· He was engaged in running the train. The'other men were engaged in widening the road for, the' .'Company;, 'They were held to be the meaning1 ()f the role.: . If they were SO,' these parties here must be ' In' Go6per v. Mil. J; Pm. d'U d. R. Go. 23 Wis. 669j a flagman, wOO failedt6'properlytititify the train 'of a break in· the road, was held to be' a fellow-servant with brakeman on the train, killec1. 'in ·COl'l:s-equenceof the 'negligence. So, also, ina' Wisconsin where attain went out to clear the track of snow. LThey had a party 0f ,snQw-shovelers;designed to shoveI ,snow off the road. The conductor concluded· to clear the road at acedain point with a snow-plow.; He made a rush into the snow with his snow-plow, and the result\\ras that the train was thrown from tb<il track. One of the party, going to his work, was injtirea.T'he,'s1:lOw-sho,·eler injured was' held to bell\:co-laborEll' in tll'e c sall1e"employment with theoonduotor, a.nd employer not' liable on that ,ground. Howland '\T. MU., L. S.·if W. R. Co. 13 Rei.; porter; 607 " Bilso :see' cases cited, . ., , 1 11[11: In· engineer lind: ;coodtlCtot of:freightJtrruins, are' to Mkh. e. .fl. Go. v; Dolan; 510. I i'l", .111 GolViM' v. Steinhart, 51 Cal. 117; itJ wa:s beld, th!a.t; the engineer: runniJ;lg the engine to hoist wltterfrom a mine, by whose a tuh:of water fell upon a. ,htborerat the bottom of,the mine and' injured hill; wa.s a fellow-servant with the party injured; within rule. ' . 80 in MaLean v. Blu.e Point Gravel Min. Go. ld. 257\ McLean being in the 'hydraulic department, was injured by the of Regan, foreman in the hl8isting department of the "general ness." McLea.n and Regan 'were' held to be within ' the rule. These are only a few,Of the 111any casesfollnd in the books which' il1u8traite this point. We do not find anything aga.inst it.' The I'
I
838
REP0,RTER.
of Kielley v. Belche1' Silver Min. Go. ,3 Sawy.500, on the trial, is a simifarcase,'.We·do not think the decision on the demurrer in that case militates again'St the princip1er ld. 437. The judge who delivered the d\'lIDur!"tn',90ncurred in.the opinion at the trial; _they were not oon,aiqeli3d to. be in l,l9nflict. We thin,k the plaintiff arldtbis·rt\nner Qfthe.enghle were in tbl;l sallile line of employment, .and!: substllntially in the same department ,.of service. There can, be no recovf,lry t;or any,injury resulting from the negligence on tllat grqQ-\J:d;.. There is/ nothing, then, to go to :I the jury on. that point.·; , the allegation in t4e complaint ,that ,the com· pany employed an, unskillfo.l engineer. Tha,t allegation Ja,lls short of ,being sufficient. ,The company is' not bound, under all circumstances, andaJiaU ,events, to employ a skillful :a,pd cOl1lpetent engineer; it is only bound to exercisedu,e diligen.oeand care in that respect. It does not warrant that he shall be skillflll,but iUs bound to use due diligence in Providing or employing a competent engineer. It may 4ave peJ:'formed duty; if it did, it is not liable. Thm:e is no allegation that 'it did,not exercise due diIigence,or was negligent in this r.el,lpect; but the fact only is alleged that the engineer was unskillful. Conceding it to be otherwise, there is no testimony hereto show that this engine-runner was not a oompetent party; the only testimony is the fact that in this instance an accident happenti.i. ,An accident may happen to the most competent and skillful man. He may have for years been without fault, and the fact that in this instance he was negligent is not inconsistent with the idea that Jiewas generally a careful man, and entirely com· petent to pedorm the· duties which he performed. And the mere fact of the singltl although evidence of negligence in that particular instance, is' not sufficient evidence, as held by many authorities, of incompetency, or that he is not a careful man. Quite a number of cases to that effect were cited on the argument, and none have been cited to the contrary. In Wood, v.' Bedford Coal Go. 121 Mass. 252·, it was alleged that defendant knowingly employed an incompetent engineer. The accident happened, yet the court says: "The declaration alleges as one ground of tPedefelldant's liability that it knowingly: employed an unskillful and incompetent person as engineer. The plaintiff does not oontend that ther.e was, any evidenoe to 8upport this Even counsel for plaintiff did not contend "tht tlw acc;ident was evi-
BUCKLEY V. GOULD & QURUe'SILVER MINING QO.
839
dence of incompetency of the'engineer:. "'The"difficulty of' thc. plaintiff':S' case is that the evidence clearly show!! that theJ injury tG riegligent:aet 0181 fellow-servant/' , 'Just' so hi thitlli case.'''1l'bere is'iJibevidellcEl,here ti'Potlthis pointi' Ag!\iin, in the'CaB!!" of 'Norcroks,: :the stiliging fell, but 'Court said: . , ""vas no evidence'that the 11)'en 'not *oI'kmen, or, that'We inaterials'pr6vided' were unsuitable; lUld, witlfout'8%me sucb 'wQSiuFJon theae:points no question plabm.tiff was entitl6\l to to tile. ,Ilt ,there wasn,egillct, OIJ; ij).e. :part qt'tbe pr in leavi,ng it, after it been p,aftil'U, ?pnstmc,teq, ,complete4 tbvnasons,. who · J cbtxipetent 'Wdtk.1ii " 1. .. i .-" i
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go
to the jury. " ,,,, · Pro,. (i;.:!lv,.Co'o was said: - " ,f! Brit aU ,this is tq.nopurpose./'so :lOnga.s it is: not ShO,l\YinlthaUbecompa,ny, AI' ip, or
au
',il)" r",lJ,, t,\l;,n,
', '; 0",,f \'I,' 0,, ;?t the actIOn; therecan,1>eno recovery. ..,' \Ie'" * ASIde from the1>roof of'negligertce in 'questi'Oh, wbicl1 is, :cleaHYln6tenough'to chitrge the,companj!, there,is'D,ottbe $Ught/JStevidelld,e ,ol1lten4ing tQ lWOWj .p.egligl.ln<le on, tiler 'ptirb tbe ' company in the W,
,\n,g,/,,th,
and unless this be
'J:! "',;
:This easels 'Me'on:1y !lAew outo! a great many bases' deciding'that'tiiie9ti!ou;:'; "Thenfis B; of evidenoe, ether tliiuf.'tbe fact of that this engine-runner was not entirely coilip13tent, a careful man. The testimony of the plaintiff shows that the engine-runner had been an engineer long bef()re he went on this mine, and that plaintiff knew it. -", ' , The mere' fact that he was negligent n6t'sufficieqt r,," l'" ' ','. of his ;it,lcomp.eyencj'.f, ',The,re ,a.re ,nuxnerous ca,sef:l to t,he point. is notestimoay &uffioientto-; go, to the jury to ;show his:incompetency.A.nd :not"onlymust: it ap'pea.rthat he was not infact-incompetent, but 'also that thG"companydid not use due c'are' iiI' employing him: 'If the a'llegation .\veresufficient, there is BhQ'Y ,on any ,of those the defend,ant is liable. qnly whether}here iB to g<;>to the jury upon. the question of the bell. We are satisfied, on that " ., " <}' " , . ' ' ,.'
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;
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.·
840
iEDER+L
point; that there IS nothing to justify the jury in finding that the acbre8.lungdown of that beH. On the concident resulted trary, the testimony shows that the accident resulted from the negligent act of the runner of the engine. No one testifies that plaintiff could have escaped if the bell had been there. The testimony of plaintiff's witnes!:!, Cumelford. is that' he could not have got outthat there was not sufficient time had the bell rung. The cage came (loWn,so rapidly that he could not have got out.ol the way., There is no testimony ,that he could have got out of the way. The testimony if! that the'eage, ordinarily, came down to the place where the bell was and stopped, arid only cam'e'down from thM point at a given signal fr()mbelow. But this time'it did nO,t, stop. It was the ordinary practice to stop it within 50 'feet ,of'the bottom and there wait until the signal to lower it was given, and then to lower it slowiy. But at this time it not only came down:' without stopping, Mtit came rapidly. . , tim'e of the a'Ccidentit'eame down with ril:pidity. The engineer' did not even stop the engine when the cage reached the bottom, fQr there were some 40 feet of cablepiled up On top of the cage. The testimony clearly shOWs,l'I.lid there is nothing to the contrary, that the accident resulted purely and solely from the carelessness 'of the in dropping ,the down at a rapid rate, stopping or: giving any notic&. The accident, therefore,' resulted from the negligence of a co-Ia.borer inthat:employment. If the jury were to find, upon such testimony, that the accident resulted from the absence of this bell, we should. be compelled to set aside the verdict. Wefflel therefore,. under r13peated rulings of the supreme conrt, to grant the motion, and we shall so the jury. Instruction and vel"diet accordingly.
MASTER'S DUTY IN SELECTION AND RETENTION OF SERVANTS. A master is under 'no absolute obligdtion to employ only fit and competent servants, but he is bonnd to exercise reasonable or ordinary care to tllat end.(a) As he is bound to exeroise this care in supplying reasonably safe and suitable mlo(lhinel'y for the ulle of his servants, and in maintaining the same in proper repair,(b) so he must exercise snch care in hiring and retaining only competent E\mployes. It is well settled that he does notnecessal'ily discharge this (n.) Laning Y. N. Y. Central, etc.,
y
R. Co. 49 N. 521; v. Eastern n. Co. 13 Allen, 440; y, Mobile & M.Ry. Ala. 13; Moss v.
Pacific R. Co. 49 Mo. 167 Guuter v. Graniteville Manuf'g Co. 15 S. C.443. (b) As to his duty in this respect, see note to O'Neil y; St, Louis, etc., n. Co, 9 Io'ed. Rep, 341.
BUCKLEY V. GOULD 4r; CURRY BILVIllR MINING CO.
841
duty merely by the appointment of a competent agent to perform it, and tlll\t for its negligent perforn1ance by such agent the master is·responslblll.(O) And his duty is not discharged by the exercise of due care in hiring competent servants merely, bUt, the same C8re must still be exercised in coIitinuing them in service, "'and if he retains an incompetent servant; after knowledge' 'of ,his!; incompetency, or when, of due care, he ought to hli.ve known it, he is as 'iesponsibleas if he had 'been wanting in theslltn'e cate 'in" hiring.(d) ·· If the master has exercised due care in th'a selection and'retentioil" of his sel'va;nts, he is not answerableforinjfiries tid 'a se:tvantl' tht:olig1f negligence' of ' , :Uponthi'squestion no! little" difference the The 'English ' t'6:fs'countrY; is; that the , held by same miiSter,' 'eiIgaged tn'caiTying' rotwarli the'cOmmon i in or areto berega,rded as' ,bol\nd by th'e,tetms of theh'erlipioy- ' ment totheit"dettifuent:(e)" ,W'ord$; ,to' be accomp'tishett is J pne' and' the saqie; 'tli,e sailie; the servants' and frciip" the, slime employes and I1gehts, ftOD1 the, bigtiestto, the lowest; arli'regatdedlis fellow'" no matter ,h6W" remote:fto)D. 'eacb';othei they",tnay, usually be' or hOw dlstinet in, Wabtcter and nature' funy be:theh;' duties' and employments,' aridwlth,out\ regirdto: any ditTerencW'lh raI'lk' orauthority.(/) ." "","''''''".,'''' , , ()F "In ordertqat WQrkqlen should be fellpw-servants,l' saldLord, in Barto'n$liji( Ca. v. Rei(1,l(U) " ill, titatthe workmall workman the sh,quld both, be. causing a.nd in or gilaid8f 1J. coach, the steerllwan 1tnd rowers of a boat I the workman who red-hot iron front 311<' who hamm.er it into shaPe, the engine.. man who conducts a train ,and the man who regulates th,e switeh.es or the signals,arll in (lomJUon work. And so, in this case, tbeman who lets wards brings them up, together with the coal which they have dug, is certainly engaged in lldlQmmonwork miners themselves. Tbeyare all contributing directly to the common Object of their common, employers in bringing the coal'to the surface:; To c'onstitute' the relation of. i:elIbw-servants, "they need not at the time be in the same particular work. It is Fllke v. Boston, etc., R. Co. 63 N."Y..549. 663; Gilman v. 'Eastern R.' 13 Alien. 440; Quincy Mining Cq. v. Kitts, 42 Mich. 34; 1Iootli v, Boston', etc., R. 00:13 N. Y. 38. (d) i'ohauJ;lY v. 40droseollglo,M!Us, 66 418; l't!iehigRn. etc., 11.; Co. v. Dolao. a2 Mich. 510.513. But see ChapmRn v.!'rie R. Co. &6 N. Y. 579. (e) 1 Rallw. 1131.
v)
<.nWilsoo v, Mer.ry, L, 11..1 H. 'L.s<:. App. 326. BartonsWII Coal Co: y;:!teta.3 Ha<:tt:29&; AUen v. Gas CO. L. 11.. 1 Exeh. Diy. 251; Ro.qrkev, WhiteMosil Colliery Co. 'L. R. 'I Com. p( Ply: '666;', }tall. road Y. Fort. 17'Wall; 663;.Blake'Y:1rtitbieceot. R. 0.0,70 60; Albro Y. AgaWfttn 0.0,6 Cosh.'75; Gllihllnnoo Y. ,Ston'y 1Irool< )t,'R,loCush.228. ' (,.) 3 Hoeq. 295.
sufficlent If tlwy are, In the employment of t,he samp. master, engnged in the, S:inleCOmmon yy,O:l'k.nnd performing duties and services fOl" the same.genei·al purposes." (h.) .. "c: 'rhus, in a. recent case)n, the English wurt of defendants, one All,sl'lll tp barge of coal for the, use of brewery, atso much per ton, he tg hir.e help and pay them out of the mOlley defendants, buth1;tving no power:to discharge any employe'W!thont the, defendant's, eonsent, it was held that ,a laborer, eroployed by AnS,e,U in ,uuJoaqing tj'le.l;0a], was 'it fellQw-servant with those at, work in the brewery(j); The superintendent and a COlUmon Bpinner;(k) ,a, ,mllte ;(l) ,heads of mentsof a a timberlllan, whQsed",ty ;t was to the aljl,d repaj.r of in a mine, in"a GOid-pit and' the engineer at the ;(0) an4an," underlooker" in a whosn duty it was to that :the, roof ,was securely propped up, anq. a COmnlQll laborer in i"" ,have beenJ1el4 to ' rtlle to rail way, ,sllrvic,e. ',' i11: .thll Ultimate" end in view-tha,t be, regarded as engaged the same generai and a master mech,ani y, ,a tr!!,ck; in charge ot the train on a,locQmotiveand a sectipp-man repairing the carpenter and tllQse in charglJ ophe carriell to 0-1' his
e.g.·
:;, one train, anii' the'ponductoror sania co;ripliny trabk' tepnlrerand'tne train ;(x) in,
the a passing oiitto carried on ,', " . E'Yen Ulider '.the Ellglish' the remoteness' qf the duties performed is Hot' whol'tY) 6t the' questIon afl'to whoare {eh6W Sai<f Ldrd' in a)' "Mally dases be liable, 'as where 'he cardes on t\vo' distiIlct bushiesses; and' a pei's'6nemploY!ld' ih oria 'ofthemls inj'1redby the negligence iJ'fa,perso? employed 'ill theotper." which
anotHer or
Charles. v: ,
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I I
.,
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(Ii)
06. ,
S6 Pa. at: ,T. (N.B.) 773"
(.) Foster
v.
et&:i R;
00. 14Ml/ln.
43'2., """,",-" (i) Charles v.
U) " ompare Rourke v:Whlte Moss Colllery
'360.:, " , " , " ,,_ (I) Seaver v, Boston, etc., n. Cq. 14 Gray, 466" (I.) Morgan v'. ot'Neath'n. 'Ca.'L. R. 1 Q,
Co. L.;n. 1 Com.;Pl. DIV., 66.... ' ',;: ',." I (k, Alhro v. Agawam Caoa] Co. 6 Cush. 75. (I) fja]l'el',.Oo a 062. , (m) LehigllV;\llley COlll,ir?( ,86 _ 'I"'.'" ,_,,:,'
St,
228.
, ',", ' .. (r) Gilsllaunon :t. Stony Brook R. Co. 10 Cush, '
(0) lJilrtollBhl)I,9palbo v, (p) Hall 3 (q) Hard v.
v,
C. 589.(
2G6.
'B;149. ' , 'ell) Pittsburgh, etc., Ry. Co. t. Lewis, 33 Ohio St. 196.,.. , _ , ' ,,'" " , \ltc., Ij.. Co<v,' Vevinriey, 17 (W) .... ' ' " ,:., ' " .'" .... .· '(x) Whaaleo v. Mall River; etc.., R. Co. 8 04io St 2 4 9 . ' . , ' ..", ·. W,.,22" (a) 38I.a'v"1'. (N. S.) 773,nG. lO.51
,F ouaa¥ SILVER MINING CO.
843
such cases \vol1l<l rest lhay Ill! fr0111 the BtACKllURN ,in M01·gan'v. Vale oj' N<iath R.'Co.,(b) where he'saJ's: "There are , where the immediate object onwhieh the one sel'Vailt is" is very dissimilar from'that on which the other iselt1pluj'eU;lind'yet the 'fisk' of in;"u/ry from tM ·negligence oj'tM i)Re Ui 80 'm'ltal't'a 'tiat'llh'J,l 'ctttd n'ecessd1'y (;Owegttenceof the emplogrnent whitJh tM other it musllbe included in the risks, wliichare,to be considered in his wages."" " 'The cony.erse Qf 'tllis propositioI1: legitimatillyfollows, and is sustained by some of the Amercan courts. T,he principle was thtis: sta:tEid by HILLYER,J., in Kielley v. Belcher 8itOOT Min; 00., (c) referred to in theprlncipal case: .. That the servant, hating 'Voluntarily: entl\red 1nto 3 contract of .servioe to do a specified work (or q, speoified compensation, has thel'eby,aceepted'the ordinary perils incident to doing tl)at work; and whenever the nllgligencll of another employeQf th,e Mme master caQ. be consid£l'ed an <lrdinary risk, one which he mig-ht reasonably, anticipate,a:t tbe time hisoontract, be accepts also the percils liable to happen·throughsUCh. ,negligence. And it seems clear ttlll.t upon those only are, fellow4B&Vallts for whose negligence, serve in:suchcapacity, andin such one to aJ)l}ther,the master is and each other,that the mea.ns,of the servants to proI'elation tect are, flq ual to Or greater than tboseofthe master to afford them than this. justice 8lld ,policy: forbid us to carry protection, lI.nd of serviCe., Bey,Qndthis, an injured the implied pOI;tionofthe antill's, title to relief .l\gQ.inst tb.e, master; as l&,$t:ranger, upon the maxim of 1'espondeat superior." If the true reason for;the,.master's exemp!la8' taken tile l'isk;of t»e negligence ,cd his fellows into tion is, that the be held: to have assumed only account when ,/l}liiJilg his tPEl risks :whichhe the se :vice.(d) Applying this test"it,was);\cldtpat.a d:mughtBman,in alopomotive works ,w,asnot, a feHow-:ser\;,ant with'3 ,carpenter :employ,ed in "'jobbing" for the or engagec ijll. exci'l!vating a, ceUar;undet the building, ' uncleI', ,the the caJ:wmter i(e) ,no); ia carpentell; in; the service of ,a thoil6.ini<WlI(I'ge,9(a,tr:l!.inon 'W:hieh he is carried to biil' IV1ndd)Jla 11a.ilr9ad sllveral hundred miles in length, t,1?e: a train ;(,9);uor a laborer, em,Writh: th.$Mlate.(h) upon this . point, but base their conclusion upon different grounds. It Is said that the master's exemption rests upoll,grounds of· exped,iE\llcy of throwing'the the is;not, liable for an injul'yinfiicted by one are co-opet'ating winr other ill a serv.ant upon another, whtlre the injury, or are, QY/J;heir usualdllties, (6) 6 Ust &: s. 610, li80 ;8.C.33 La" :.160.' , I' " (0) 3 Saw,\'. 600. ' (d) Baird .. 10 Pa" St., 417,482." " ' (0) Baird T. I'ettlt, 70 Pa. St. 477, 482. (f) O'Donnell v. Jollegheny, etc., R. Co. 69 Pa. 239, d
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341':: (h) Mullall ··
eI6..:I' Co;
,': '.
v; Carroll, 6' " etc., 8:8.00;'78 Pa. ,
St 26. I Whetltet thefwere'retlow-aet'vant8 a queil'lollfar,tl1e'ju",t;,,,,",,i1 , ':. ' ;.'
.;;,
844
REPORTER.
brought into habitual consociation, because they have the power of influencing each other to theexeroise of constant caution in the master's work (by example, advice, and encouragement, and by reporting delinquencies to tllfl master) in a great,and,in most cases a greater, degree than the master. Where the servants h",veno opportunity for such,inftue,nceovel' each other, the reasol). fOJ; the master's exemption no longer exists. Accordingly, in a recent case in Illinois, where this doctrine is!,elaborately conSidered and the authorities reviewed, it was held that a railway company was liallle to a track repairer: wh,o, while standing by, the track, was.struck and injured bya piece of coal Qarelessly thrpwn from the tender by the fireman of a.passing train.(i) SilUilal'ly, engine.dl'iver of a railway has been held not to be a fellow-servant with al,aborer in,tha company's calipenter-shop.(,i) And the Same. ,doctrine, has, been. helel ill,nd applied. in other states.(k) . ']'ELLOW-SERVANTS, ALTHOUGH OF ,THE OTHER. ,,,Said'
,it
,tbldisputethn.t.,in master Is not 'to 'a servant for the:negligence of iJ.fellow"servan'ti,·thOugh he bethe'Inanagerof tM conoernl" ,and the certified manager! appointedundel"ll. statute, was held a.fc:illow-servant witha.workeJ1!in the mine. By the weight of authority America as 'well. as, in 'England, the fact that tlie rlegligent servant is superior'in :a:u thorit1 to the injured 'servan t, 'that he hires alld maydiscl\:t'l.'ge him,and.may'direct him as to bis work;' doesn6t enlarge or modify'the master's'lillbUity.(n) , . ' ,,:B lIt thili: rule'i8 'notacceptedV without modifica tioJ1,ln this country. First. anmuberof authodties that hold that,if'the master has placed the entire charge businessinthehatids.:Of atl agent. exercising n 6 authority and no'superintendence alb!s owjf,tbel'ein,such' agent represents the 'llliistot, 'and'fdl"'his riegHgence the 'master 'is responsible to' his' servants.(0) '" OMu,g' to' the fact· that, the' busIJIlesB) Of corporations is' transacted' by means JOf agents. they, wOuld esoape the just measure of liability, unless the rule ap'p'lied' to them.! In this respect, JlJdthias to 1iabilityand for they stand ori the same footing with 1ndividuats."(p) 'Second;'Byotlwrauthorities the rule, is denied altogether, and it is 'heid'that' if' the'tellition of superior and subordinate is sho.wn to:eocist bel1ween the negligent ana the injured 'servant, 'arid 'bf the former; is I f
'Steel Co. :(l)
ONE IS SWBJ'ECT TO' '1'ttE AUTl'IORITY of Howells v. LandMe the case of 'lVil.mn. Vi Mel·l'y.('m) in the hoiise of lords,
' · .(\)qhipallo, Jf.cQo, "iMercb,!,lIs' , (j) v H, co: ,60 Ill. 171., '." ! r.ong ,Co,. 84 N, K"ystone .(k) 1)'<loper v::Mitllins. 30 Ga, 146 Newber% 95 at: 246, . . · R. 00. V.ICt.vens, JI Hush; 55.9.; Nalhvllle, etc';' Lehlgli'Valley Cont '00, v. 10nellj 56 POI. 'St. R. Cp. '\'" 10'!es, 9 Hel.k. (Telln.) 27. 43l!; M911al1 :V. Philadclphla"etol; II. s. 00. m Pa. (i) 10 Q. ,Ii: 62. :' . . · St.1l?6 ;80rQl1,yv., '(111)1;. R, H. L.' so. ·AllP. 32,. , etc., R. 'Co, v. Little, 19 Kan. Malone (n) Murphy v, Smith,19 C. B, (I". S.) 361(Ga11a< Hathaway,64 N, Y. 5; Beeson v. Green Mountain .. r:ip.Jr,1l1 at ll. (N.. 669; Ze!glerv,*",y,GolHdining Co. 67'C.I. 20, 123 Mas·. 102; Marshall v, Schricker, 63 Mo, ;lQ3; (p) Lehigh Valley Coal Co, v. 10nes, F6 Fa, St. 432; Howells v, Steel Co. L, R. 10 Q. R. spu y. WhitehreaBt,tOoa1&' J>:l,il\ing 00,,60 Iowa, 62. Blackburn, J,jAlIen ".l'l:ew Gas Co, 1 h;xch. 6#; 0;60noell V, ;R, Cll,!20 Mel. Div, 251. . 212; 1I1"lolie V, Hathaway, 64 N, Y. 6; Curran v.
BUCKLEY f '. ' · ;
qo-tito' &' CURRY slMER MINING CO. · ; " '
liaLIe.@ .. Accordingly,s qUl\1l ryman and the foreman of tb.e quarry;(rta brakelnan and. the engineer 0'1' 'COriductor ofa freighttrain ;(8) a railroad 'laborer in building a culvert' and the superintendent under whose, 6rqers lWted:(t) anarchitect gild Ii srlpeiintendent, having eredtian"of a building, and a Workmah thereon ;(u) the I' section-bollS'," Qn a, railtoadatld the workmen under him ;(v)the conductor of tr'clin atld a boy of seventeen, empl'i>yM as a laborer on the traiu, (w).::c....h'avg beeri'held not fellow-servants. Thi1·(1,. 'rhetest Jaid do\,:n by the New:y"prlr,Q01.p:tsJs, that, in order tocharge.the master, tnuuperior servant must so fat standin the place of the master as to be charged with the performance of dutIes to'Watelil the'inferior servant, which, under the law, the master owes to such servant.(x) In the late case of Crispin v. Babbitt,{y)...where it was left to the jury to determine whether the" business and financial man" in charge of the defendant's iron with She pl!\i n ,in who was inworks was a jured by the act of an engine hy which the New York rule thus: "Tlie IiaOl1itj'of fua master does not depend upon the grade or rank of the employe whose negligenee QltUMsth6" injUITY.h.Aeuperinten6ent til.a powell ,tit menl oi i,n Giher' respects, is,'oln the' UlMllllgemeritff of the maehinety;/ a/felld'W-ser1atlt of the other operatives. On the same principle,howe'iet"low thegracte 'Ot' of the employe, the master is, lia:ble for inftiti'f!ilb;\U'sedb1 hhrtto sdi:htl'liuty'of tl1'e'dlli:stbr';Whibli he has 'tr ! (,T,be,: is 'pe#o.lfw4Cie of .em-Illp,,, ,pjmfprmhe .. ) The olnivenie of ifollow&. pertainS'drily to the tHe 'duty of an' '0peMtivej 't'tiel It is' tittl.'ere: and the t(nttr'JHmlri4iis t16t11{alite t()'J a for its 'iJnpfupei (tis' his , retlJ/>:Ilgb 1illLeRPPf.lai1f, iBi malnta.i.Iled inEnglandl3llldinaom e American courts.(b) The inspector of <tHe. ma:eltil1etyl and:l1app'J.iah'tiesf!of a ,! .; etc"Ry. Co. v. Devinney, 17 Ohio St. .205.. 197, 210; Knoxville Iron Co. v. Dodson, 7 I.:llW':· ,(q),
I. " .
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Mlch, .).,
008Iillllk&v;Sl)slflllliete.r:a.CJll, 63'l.\1i. Ii. 519.
v:
;ri BOR_ R. lr ChI. .coll\!'>lu'ePltlBlJatgtl, eto., a,;. 00. f: 8,' il'te.,'1t: ('0.41 l1o'lQ\lfo:li!t.·!tl6. :JAil, ,,; lull Ii: (lJ ;i)·.f (t) KanRas, etc., R. Co. v. Little, 19 Kan. 269. (b) ColllmbP,:lIt,qlolJR..:Gp,)\'f Ind, (u) Whalen v. Centenary Church, 62 Mo. 226. 174; Wonder v. Baltimore, etc., R. Co. 3< Md. (,,) LOll'sville, etc., R. Co. v. Bowler, 9 Helsk·· ,,,,.U.,llatpJl¥I1I C\lQ$raUl, CO.81'lll.:JdlOl911193: (Tenn.) 1366. Walter v. South.ea.tem R. CO.2 Hurl. ... C. 102; 311111
t.)
-t.
..
. ,l'i!. '(. 2M. jj I tMJ) i
846 railroaci is. nota with thll bfakeman of ,Il train,(c) or with the engin eer. (d) But the workmen employe(iin a machine-shop of a railway fellow-servants, ,so that if a. bpiler, sent to the shop for repair:, company by: of tile of another workexplode;sallQ. Dlap through wholle hands it has passed in course of repair, the companyilil not liaqle,though it would have been otherwise had it .been placed in the hands of an eniploYll fp!i use.(e) . WAYLAND E. BENJAMIN. Searle v. Limlsat,lH);B.{N.B.)429; COnwa7 v. Belfast·. e,lo.iJl, Co. l. R.19 C. L ... lIB., , (4) Darkln v, Sbarp,SS·N. Y, 225.
C') LoDi v.
(.)Murpill v. BootoD, etc., B. I"II.llll N.
.14f.
lID Mo. 226.
FLE'l'OHER "',!i
V.
NEWYOBlt.. LIFE INS. CO.;, '. "':;',
(C!wcuil Cou,'I't, E. D.
September 23,1882.)
Wllere,llopJ'rty aignAA an application whicb, t1J,at the therein 8houl!! , , be the basis 'of the cOIUract;,and their /!oDd which also contamedani'greement that n'O statemlmtli; representations,orinformation made or 'given bjor to the person soliciting or taking his application fOr a policy, or to. ;any other rierson, should or in any manner dffect "its. rights, unless such 'statements, representations, or information werereduced:' to writtng &ndpresented to ·,the .0ftlcel'B of' the .company, at its ,and whe.re Ijucl\ applica.tion contain/ld two .false&oswers material to the' which,hl\d peen :writlen ,\:jlerein Il;nlle, agent who exam. the Mid, n08uit ?Ould be maintained on \hepohcy lncaseof tlieassured'8 death unless It were proved, thlitthe' &ssUred'sRDswers to 'the to which' false answers had heel!. inserted, were true : :that the false answJl'B'had been by the company's. . agent.withoutthe 88sured"s kI10wledge';laml that such agent concealed from :' ,the assured what he had wtitten'iD t!)eapplicatioD, and induced him to sign it, :wJtholJ,tkno.wing what, it contained. 8. 15AME,
Parol' evldenceia.admiSlliblil'insuch C8888 to mow fraud on the agent'8 part. .. 6..uI1Il.,.,.CONCEAWflIl:NT, OFAGUT'S
Where aD applicant for insurance di8OOVtu'lI before the policy is iS8ued, 'Or the1irst premlUl?,pRid, that the'companY'8 agent has optainep ,hiS signature to an 'application C<1Dt"ining' it .JjI' .hi8.'dqty t\>gO no fUJ:ther ,in the ., traJlsal;t,ion; but, ir he does .make uniUaftel' the policy has been issued and ,the ,first premium paid, he is Dot. bound to take any.tepa to> I haNe·thll policy c a . - n c e l e d ; ' , " ' Tf "
FRAUD, ;
.....oned
Ii,·.
j:
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F, Bet, Esq" ot the tll;.Lolll. bu.