Doughty v. Penobscot Log Driving Co.

Peters, C. J. The general rule that a master is not liable for an injury caused to a servant by the carelessness of a fellow-servant in the same common employment, unless the master is negligent in some matter he expressly or impliedly contracts with the servant to do — is the well settled law of this state. Who is a fellow-servant within the meaning of the rule, is a question much discussed, upon which the authorities very essen [146] tially disagree. Different courts entertain different theories and views. This general rule has been extracted from the authorities : " The decided weight of authority is to the effect that all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants, who take the risk of each other’s negligence.” 2 Thomp. Neg. 1026. This seems to be an unobjectionable definition; but, being general, difficulty arises in applying it to cases. The author proceeding further, says, p. 1028, "The fact that the negligent servant, in his grade of employment, is superior to the' servant injured, does not, in the opinion of most of the courts, take the case out of the rule; they are equally fellow-servants, and the master is not liable. Within the meaning of this rule, a mere foreman of work is generally regarded as a fellow-servant with those under his control. But if the master has delegated to the foreman or superintendent the care and management of the entire business, or a distinct department thereof, then the rule may be different.” These views are in general acceptable to us, and we think our own cases are in accord with them. Carle v. Railroad, 43 Maine, 269; Buzzell v. Laconia Co. 48 Maine, 113; Beaulieu v. Portland Co. Id. 291; Lawler v. Androscoggin Co. 62 Maine, 463; Shanny v. Androscoggin Mills, 66 Maine, 420; Blake v. Maine Central R. R. Co. 70 Maine, 60. It is said in some cases that the exception to the rule presses more strongly against corporations than against natural persons. This is not generally admitted. We do not see why the principle would not be the same. But corporations are more likely to deal through general agents than individuals and firms are. Of course, these rules, like most rules, have their exceptions. We shall only get blinded in our way, if we look for other paths than the one called for to reach a conclusion in the case before us. But with these guides, the difficulty still remains of deciding whether the foreman or' superintendent is a "middle-man,” possessed with all the powers and responsibilities of a principal, [147] —a " vice-principal standing in the principal’s place,” The author' before quoted says : "A true expression of the rule seems to be,, that, in order to charge the master, the superior servant must so-far stand in the place of the master as to be charged with the performance of duties towards the inferior servant, which under.the law, the master owes to such a servant.” Thomp. Neg. 1031.. Instructed by these rules and legal definitions, our minds-incline to the opinion that the present action is not maintainable.. The question may not be free of all doubt, but it seems to us-that the greater weight of argument, based both upon authority and principle, points that way. Here was a common job of work of repairing a dam by a log-driving company. Presumably, many men were employed without any essential distinction of the service to be individually, performed. Some one of the men must act as leader or director of the crew. Johnson does not appear to be a general manager, but merely a foreman in a particular, special, job of work. The-plaintiff very well knew the nature of the service to be performed.. Certainly, one of the ordinary risks of the employment was that some man among them might make a miscalculation or mistake.. The plaintiff was sent upon no special errand of peril. The act complained of was committed under the foreman’s eye; but under the plaintiff’s eye as much, as far as appears. The accident was not a strange if an unusual affair. It would not differ much, in kind from many accidents that might happen to a person, working in a crew or company of men, whether engaged in¡ driving logs, or mending dams or passage-ways for driving logs.,, or at farm work, or at mechanical business. It would be profitless to examine or cite many of the analogous' cases that bear upon the facts of this case. A few of those bearing a close resemblance to the case in hand may serve to illustrate the correctness of our view of the question presented. Cases in our own state are good illustrations, we think. In the case at bar, the men employed with the plaintiff were working upon some timber by way of repairing a dam, when a stick'was forced against the plaintiff, injuring him. So in Beaulieu v. Portland Co. supra, the plaintiff was injured by the falling of a [148] ftimber upon him, and he failed to recover. In Lawler v. Androscoggin Co. supra, the injury was caused by the plaintiff going into a culvert to repair it, when it was dangerous to do so, the service being expressly ordered of the injured party by the road master of the defendant corporation ; and it was held that the plaintiff in that case could not recover. It will suffice to cite other analogous and closely resembling cases. Duffy v. Upton, 113 Mass. 544; Zeigler v. Day, 123 Mass. 152; Kelley v. Norcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; McDermott v. Boston, 133 Mass. 349 ; Floyd v. Sugden, 134 Mass. 563 ; Wigmore v. Jay, 5 Exc. 354. Plaintiff nonsuit. Walton, Barrows, Danporth and Likely, JJ., concurred.