Baird v. Pettit

The opinion of the court was delivered, November 4th 1872, by Williams, J. The plaintiff below was employed as drafts [482] man in the works carried on by the defendant for the manufacture of locomotive engines. On the evening of the 15th of November 1865, after the hands had quit work, he left the building where he was employed, and was on his way home, when he fell over a pile of dirt and rubbish on the sidewalk in front of the premises, a few feet from the steps of the building, which had been thrown out in deepening a cellar, and left on the pavement, and in falling received the injury for which this action was brought. The work of excavating the cellar was done under the superintendence of the carpenter employed to do the jobbing work about the premises, but the men who did the excavation, as the jury have found, were subject to the defendant’s direction and control. Is the defendant, then, liable for the injury occasioned the plaintiff by their negligence ? If they were engaged in the same common employment with the plaintiff, the defendant is not responsible for the injury, becanise the plaintiff in entering into the defendant’s service assumed all the risks usually and necessarily incident to the employment. One of these risks, as is well settled, is the liability to injury from the negligence of fellow-workmen. But if they were not in the same common employment, the defendant is liable for the injury occasioned by their negligence, for the plaintiff did not take upon himself any risks except such as are ordinarily incident to the business in which he was engaged. The defendant’s business was the manufacture of locomotive engines, for which the plaintiff was employed to make the drawings. In accepting the employment he took upon himself all the risks necessarily incident to the business. But the workmen by whose [negligence he was injured were not engaged in the manufacture ¡of engines, nor in the performance of any service connected with the business. There is not a particle of evidence that the cellar they were excavating had been or was intended to be used for any purpose connected with the business carried on by the defendant. If, in order to exempt the master from responsibility, it is not necessary that “ the servant causing, and the servant sustaining the injury should both be engaged in precisely the same or even similar acts,” it is essential that they should be engaged in the same common employment, and that they should be working for the same common end. As it was the plaintiff’s business to make drawings for tools and engines, all persons engaged in their manufacture, or in carrying on the works, however employed, must undoubtedly be regarded as his fellow-workmen and engaged in the same common employment. But with what propriety can it be said that the workmen who excavated the cellar were engaged in the same common employment as the plaintiff? Servants, it is said, are engaged in a common employment when each of them is occupied in service of such a kind that all the others, in the exercise of ordinary sagacity ought to be able to foresee, when accept [483] ing their employment, that it may probably expose them to the risk of injury in case he is negligent. That this is the proper test is evident from the reason assigned for the exemption of masters from liability to their servants, viz.: that the servant takes the risk into account when fixing his wages. He cannot take into]', account a risk which he has no reason to anticipate, and he doe^1 take into account the risks which the average experience of his fellows has led him, as a class, to anticipate: Showman & Red-field on Negligence 109. If this is the rule — and wc we not disposed to question its soundness — how could the plaintirt, in the exercise of ordinary sagacity, foresee, when accepting the employment of draughtsman, that it would probably expose him to the risk of injury from the negligence of the workmen employed by the defendant to excavate the cellar ? What reason had he to anticipate the risk so as to take it into account in fixing his wages ? Manifestly the negligence which occasioned the plaintiff’s injury was not one of the risks which he assumed in entering into the defendant’s employment. But there is another reason for holding that the rule which exempts a master from liability for an injury occasioned by the negligence of a servant does not apply in this case. The relation of master and servant did not exist between the parties when the plaintiff received the injury. He was not then in the service of the defendant; he had quit work and was on his way home. He was no longer subject to the defendant’s control, or bound to obey his orders. As soon as he left the building he was his own master. He was then no more in the defendant’s service than any other citizen passing along the street, and he was entitled to the same rights and immunities. If the relation of master and servant did not cease when he left the building, after his day’s work was done, when did it ? It cannot be pretended that it followed the plaintiff home and remained with him while there. And if not, it must have ceased when he left the building, and he had the same right to an unobstructed sidewalk in front of the defendant’s premises as any other citizen; and, if injured by a dangerous obstruction, the same remedy for an injury. It will scarcely be contended that if, while on his way home, he had been run down by the defendant’s carriage, through the carelessness of the driver, the defendant would not have been responsible for the injury, because the negligence of the driver was one of the risks which the plaintiff assumed when he entered into his service. But in principle what difference is there between the two cases ? Why is not the driver of defendant’s carriage as much the plaintiff’s fellow-servant as the digger of the cellar ? And why should the plaintiff be required to foresee and take into account the risk arising from the negligence of the one and not of the other ? There is no real difference between the cases, and neither case is within the rule which exempts masters [484] from liability for injuries occasioned by the negligence of tbeir servants. It is clear that this case is not within the rule, not only for the reason that the injury did not happen to the plaintiff while he was engaged in the defendant’s service, but because it was not occasioned by any of the risks he assumed when he entered into his employment. The risk which occasioned the injury was not one incident to the business, and to which only the workmen engaged in carrying it on were exposed; but one unconnected with the business, and to which all citizens having occasion to pass along the street were as much exposed as the plaintiff and his fellow-workmen. It follows from what we have said that there was no error in the instructions given by the learned judge of the District Court to the jury, or in his refusal to affirm the points submitted by the defendant. Judgment affirmed.