McMaster v. Illinois Central Railroad

Arnold, J., delivered the opinion of the Court. If a brakemah on one train of a railroad company is the fellow servant of the employees in charge of, or operating another train of the same company, on the same road, the declaration was demurrable. There is some diversity of authority as to who are fellow servants, within the meaning of the rule which exempts the master or employer |rom liability to those engaged in his employment, for injuries suffered by them, as the result of the negli — 268 — gence or misconduct of other servants employed by him and , engaged in the same common business ; but subjection to control and direction b3^ the same common master, in the same common pursuit, furnishes the true test of co-service. When servants are employed and paid by the same .master, and their duties are such as to bring them into such a relation that the negligence of the one in doing his work may injure the other in the performance of his, then they are engaged in the same common business, and being subject to the control of the same master, they are fellow servants, within the generally accepted meaning of the rule, no matter how different the grades of service or compensation may be, or how diverse or distinct their duties may be. 3 Wood’s Railwa3'- Law, 1491, et seq. And when the relation of fellow servants is established there can be no recovery from the common master or emplo3er by one of them for an injury occasioned to him through the negligence or misconduct of his eo-emp^ee. In order to render the master liable in such case it would be necessary to show that the negligent servant was incompetent, and that he was selected without reasonal le care and prudence, or fhat he was continued in the emplo3ment after notice to the master of his unfitness, or that the master had failed to furnish adequate means and materials for the work. Such is the law of this State, and such is the law as it has generally prevailed in America and England for many years. N. O. etc. R. R. Co. v. Hughes, 49 Miss., 258; Chicago etc. R. R. Co. v. Doyle, 60 Id., 977; L. N. O. & T. R. R. Co. v. Conroy, 63 Id., 562; Randall v. Baltimore & O. R. R. Co., 109 U. S., 478; Murray v. S. C. R. R. Co., 36 Am. Dec., 268, and note; 3 Wood’s Railway Law, 1494, et seq. For the purposes of this ease it is not necessary to collect more of the numerous decisions, English and American, on the subject; that is well done in the three authorities last above cited. The doctrine in question was first asserted by the Supreme Court of South. Carolina in 1841, in Murray v. S. C. R. R. Co., 1 McMullans’ Law Reports, 385. It may well be termed the South Carolina doctrine. Chicago, etc. R. R. Co. v. Ross, 112 — 269 — U. S., 377; Murray v. S. G. R. R. Co., 36 Am. Dec., 268, and note. The reason upon which it is based cannot be better stated than by quoting from the opinion of the Supreme Court of •Massachusetts in Farwell v. Boston & Worcester R. R. Co., 4 Met., 49, which has long been considered a leading case both in this country and England. Chief Justice Shaw, in delivering the judgment of the court, said: “The general rule resulting from considerations, as well of justice as of policy, is that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as > effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any other. To say that the master shall be respon- • sible because the damage is caused by his agents, is assuming the very point which remains to be proved. They are’his agents to some extent and for some purposes, but whether he is r. sponsible in a particular case for their negligence is not decided by the single fact that they are, for some purposes, his agents. In considering the rights and obligations arising out of particular relations, it is competínt for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned. We are of opinion that there are such considerations which apply ;strongly to the case under discussion. When several persons are employed in the conduct of a common enterprise or undertaking, and the safety of each depends to a great extent on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any miscom uct, incapacity or neglect Of — 270 — duty, and leave tlie service, if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each otke>\ Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his employment, in which he must bear the loss himself, or seek his remedy, if he has any, against the actual wrongdoer. It was strongly pressed in the argument that although this might be so when two or more servants are employed in the same department of duty, when each can exert some influence on the conduct of the other, and thus to* some extent provide for his security; j’et that it could not apply when two or more are employed in different departments of duty, at a distance from each other, and when one can in no degree control or influence the conduct of the other. But we think this is founded upon a supposed distinction on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the samp, and the several persons employed derive their authority and their compensation from the same source, it would be ex. tremely difficult to distinguish what constitutes one department and-what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend on the nearness or distance of the persons from each other, the question would immediately arise how near or how distant must they be to be the same or different departments ? Besides, it appears to us that the argument rests upon an assumed principle of responsibility which docs not exist. The master in the case supposed is not exempt from liability because the servant has other means of providing for his safety, when he is employed in immediate connection with those from whose . negligence lie might suffer; but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is — 271 — one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow servant, does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence, the separation of the employment into different departments cannot create that liability when it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers for the negligence of a servant.” But the injury complained of in this case, having occurred in Louisiana, the rights and liabilities of the parties in relation to it are governed by the laws of that State. Chicago, etc., R. R. Co. v. Doyle, 60 Miss., 977. TVe find that the law of Louisiana on the subject is different from that of Mississippi and most of the other States of our Union. In Towns v. Vicksburg, etc., R. R. Co., 37 La. An., 630, and in Van Amburg v. Vicksburg, etc., R. R. Co., Id., 650, the Supreme Court of that State approves and adopts the doctrine announced by the Supreme Court of the United States, in Chicago, etc., R. R. Co. v. Ross, 112 U. S., 377. But this does not change the legal aspects of the ease at bar. Four of the judges of the Supreme Court of the United States dissented, in the case referred to, and the decision of the majority is contrary to the general course of judicial opinion in this country and in England, and it does not go further than to hold, that the conductor of a railway train who commands its movements, and controls the employees upon it, is not the fellow servant of the other employees on that train; but is the vice principal representing the company, and that the company would be liable for a negligent act of his which resulted in injury to another employee on the train. On the authority of that case, the conductor, while not the fellow servant of other employees on the train subject to his direction and authority, might well be, and under the law as it is generally under stood and interpreted would be the fellow servant of other employees of the company in the same common business, over whom he had no supervision or control. It follows from what has been said, that the brakeman on the freight train, and the employees in charge of the passenger train, — 272 — were fellow servants, and that the action of the court below ill sustaining the demurrer to the declaration was free from error. Affirmed.