Summerhays v. Kansas Pacific Railway Co.

Bedford, J. The declaration presents the ordinary case of a co-employee suing his employer for injuries resulting to him from the negligence and unskillfulness of another employee while engaged in a common employment. ' From a careful examination of the many authorities bearing on this subject, it would seem that a true statement of the rule as to the master’s exemption from liability for the negligent conduct of a co-employee in the same service, would be as follows : The employee, in entering the service of the principal, takes upon himself all such risks as fall within his contract of service, or such as the servant had reason to believe he would have to encounter in pursuit of his common employment, skillful and competent fellow-servants being provided by the master. The duty of the master to the servant is to the effect, that the servant shall be under no risks from imperfect or inadequate machinery, or other material means or appliances, or from unskillful or incompetent fellow-servants of any grade. This duty, on the part of the principal, is not discharged until there has been placed for the servant’s use, perfect and adequate physical means, and for his helpmeets fit and competent fellow-servants, or due care used to that end. These being furnished, the servant takes upon himself the risk of the negligence, recklessness, or misconduct of his fellow in the use of the material and [487] implements. Lanning v. N. Y. C. R. R. Co., 49 N. Y. 521; Railroad Co. v. Fort, 17 Wall. 557. There is no averment in the declaration that the engineer and conductor were unfit or improper persons to manage the train, and that this unfitness was known to the company. The plaintiff seeks to recover on the ground that, in this particular instance, there was a lack of care and skill. This clearly is not sufficient to create a liability, for the employee could not but anticipate that an occasional lack of care and skill would occur, and indeed its omission is one of those ordinary risks incident to all employments, and to which servants engaged in a common work are at all times exposed. There would be some force in the plaintiff s claim, if the company sustained the same relation to the servant engaged in its work that it sustains to the stranger or passenger traveling in its cars. The company does not occupy the position of an insurer against the perils to which its employees may be exposed by reason of their employment. Its duty is discharged when competent fellow-servants are engaged. A single omission to exercise care by a fellow-servant (and that in the instance complained of), cannot be taken in an action brought by another against the company as proof of the latter’s liability. To give the co-employee a status in court, he must aver that the company, whose liability he is seeking to establish, furnished incompetent fellow-servants, or continued such men in its service after having notice of the same. In other words, he must bring his case within the well-known exceptions which attach to the general rule, and which declares the master’s exemption from liability for the negligent conduct of the co-employee in the same service. This the declaration fails to do. We take it to be the law that in a suit brought by a railroad employee against the company for damages caused by the alleged unskillfulness or negligence of another employee of the same company, the defendants are entitled to the benefit of the presumption that they exercised due care in the employment of the person charged with unskillfulness or negligence, and that they had no knowledge of the defects [488] of capacity or character imputed. Davis v. Railroad Company, 20 Mich. 105. It is insisted that, inasmuch as the brakeman was inferior in position to the conductor, or engineer, he was bound to obey their directions, and that the injury having resulted from this obedience, changes the rule, and fixes the master’s liability. From a careful examination of the declaration, we are of the opinion that the injury inflicted, arose out of the negligence of the engineer, who certainly was not of a superior grade to the brakeman, and who, in the strictest sense, must be regarded as a fellow-servant, engaged in a common employment. We, therefore, deem it unnecessary to determine the effect of a special direction given by the conductor, or to determine whether he is of a grade superior to that of other employees, in the management of a train. Among the ordinary duties of a brakeman is that of coupling and uncoupling the cars at the different stations, where some are attached, and others detached. This was something, the doing of which was likely to occur every day, and at every station. If the engineer, negligently, or prematurely backed the train, and pressed the plaintiff between two cars, this was a risk which fell within his contract of service. I am aware that in some States — Wisconsin, Indiana, and Ohio — it was at one time held that the servant could not be presumed to contract with reference to injuries inflicted upon him by the negligence of another. See Chamberlain v. Railroad, 11 Wis. 238; Gillenwater v. Railroad, 5 Ind. 239; Railroad v. Stearns, 20 Ohio, 415. But the late decisions no longer adhere to that doctrine, as will be seen by examining the cases of Mosely v. Chamberlain, 18 Wis. 700; Railroad v. Arnold, 31 Ind. 182; Railroad v. Devinney, 17 Ohio St. 212. It is, then, the settled law of this country and England, that where one servant is injured through the negligence of another engaged in the common service of one master, and the person who occasioned the injury is a servant of ordinary skill and care, no action lies against the master for injuries so received. In view of these principles, and for the reason that the declaration fails to [489] disclose any knowledge on the part of the defendant, as to the incompetency of the engineer, we think the court committed no error in sustaining the demurrer. When no scienter of such servant’s incompetency is alleged, the declaration must be held bad.' 3 Ellis & Blackburn, 402. The judgment of the district court is Affirmed.