Lawler v. Androscoggin Railroad

Appleton, C. J. It is well settled in this State that a servant who is injured by the negligence or misconduct of his fellow servant, cannot maintain an action against his master for such injury. Carle v. B. & P. C. & R. R. Co., 43 Maine, 269; Beaulieu v. Portland Co., 48 Maine, 291. “The rule,” observes Earle,, C. J., in Tunney v. Midland Railway Co., Law Rep., 1 C. B. 291, “has been settled by a series of decisions beginning with Priestly v. Fowler, 3 M. & W., 1, and ending with Morgan v. Vale of Neath Railway, Law Rep., 1 Q. B., 148, that a servant,, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, includ [466] ing the negligence of his fellow-servants.” This is pretty universally recognized as law in the decisions of the courts of the different States in this country. Nor is the law held differently when the employee causing the injury is engaged in a different department of the same general service or exercising a higher grade of authority. In Feltham v. England, Law Rep., 2 Q. B., 33, it was argued that the foreman, by whose negligence'the injury occurred, should be deemed as the “alter ego’’’ of the master and not as the fellow-servant of the party injured, but the court held otherwise. “We think,” remarks Mellor, J., “that the foreman or manager was not, in the sense contended for, the representative of the master. The master still retained the control of the establishment, and there was nothing to show that the manager or foreman was other than a fellowservaht of the plaintiff, although he was a servant having greater authority. As was said by Willes, J., in Gallager v. Piper, 33 L. J., C. P., 335, ‘a foreman is a servant as much as the other servants whose work he superintends.’” This was held to be the law of this State in Beaulieu v. Portland Co., 48 Maine, 295; and in Massachusetts in Gilshannon v. Stony Brook R. R., 10 Cush., 228; in Vermont in Hurd, adm., v. V. C. R. R. Co., 32 Vermont, 473. The master is liable for the consequences of negligence in the selection of his servants. The gist of the action is negligence. It is the duty of the master to select fit and competent servants. Negligence exists when the master fails to do his best to accomplish this. Gilman v. Eastern R. R., 10 Allen, 238; Warner v. Erie R. R., 39 N. Y., 468. Where the servant attempts to .hold the master for his negligence in procuring suitable servants, the charge of negligence should be duly alleged in an appropriate .count. Harper v. Ind. & St. Louis R. R. Co., 47 Mo., 567; Moss v. Pacific R. R., 49 Mo., 167. .The master of men in dangerous occupations is bound to provide .for their safety and this obligation extends equally to the providing good and sufficient machinery and to the procuring skilled and [467] judicious men by whom it is to be controlled. Coombs v. New Bedford Cordage Co., 102 Mass., 572; Fitch v. Allen, 98 Mass., 573. When a master employs a servant on a work of a dangerous character, he is bound to all reasonable precautions for the safety of his workmen. Patterson v. Wallace, 1 Macq. R., 757. And that they be not exposed to unreasonable risks. Noyes v. Smith, 28 Vermont, 29. But the negligence of a fellow servant is regarded as an ordinary risk. Brydon v. Stewart, 2 Macq. R., 30. The declaration alleges that a culvert being out of repair and in. a dangerous condition and the plaintiff being employed to repair the same, he, being ignorant of its dangerous condition, of which the defendants, or their servants, were well aware, the defendants “by their agent and road master did so carelessly and negligently manage and conduct, supervise and control the making of said repairs upon said culvert,” that the plaintiff was grievously injured. The careless and negligent management of the defendants’ servants is the only cause of the injury set forth. There is no allegation of negligence on the part of the defendants in selecting incompetent servants, nor is it alleged that the dangerous condition of the culvert was the cause of the injury. Excegotions overruled. Walton, Dickerson, Barrows, Daneorth and Yirgin, JJ.s concurred.