Louisville, New Orleans & Texas Ry. Co. v. Petty

Campbell, J., delivered the opinion of the court. The evidence tends to show that the injury received by the appellee was caused by the want of sand in sufficient quantity in the sand box on the engine, but there is no evidence how it came about that the supply of sand was insufficient. Whether the engine [259] was furnished properly, in this respect, at the start, and had exhausted the supply, or started unfurnished, does not appear. If the latter be true, it was because of the failure of duty of that servant of the company whose duty it was to fill the sand box suitably, and for an injury suffered by reason of the negligence of such fellow-servant, the appellee, a brakeman on the train, has no claim on the company, it not being made to appear that it was at fault as to the selection or retention of the servant, or in any other respect as to this service. No rule of common law is more universally affirmed than non-liability of the master to one of his servants for an injury caused by the negligence of a fellow-servant engaged in the common service; and it was distinctly announced in this state, more than sixteen years ago, that all employes of a railroad company engaged in merely operative service connected with the carrying on of the business of running trains are fellow-servants, and that the common employer is not responsible to one of these for injuries caused by the negligence of another. Undoubtedly the “hostler,” or yard servant, charged with the duty of supplying the engine before starting it on the road with fuel, water, sand, or other needed thing, is a mere servant, and not the agent or representative of the master, except in that qualified and subordinate sense in which every servant may be said to be; and, if it be true, which has not yet been affirmed in this state, that certain employes of a railroad company are not fellow-servants of the army of employes, employed in doing the work of carrying on the business, it would yet be true that the appellee and the laborer, whose default is supposed to have led to his hurt, were fellow-servants, and no liability attached to the common master. The rule on this subject, announced in N. O., etc., R. R. v. Hughes, 49 Miss. 258, decided in 1873, and reaffirmed with emphasis in Howd v. M. C. R. R. Co., 50 Miss. 178 (1874), has remained undisturbed by judicial or legislative enactment, and must be regarded as the accepted doctrine in this state; and we must not be expected to follow the devious ways of those courts which, in bending the rule which all acknowledge, to effect their ideas of justice in particular cases, have well nigh destroyed the [260] rule itself. This rule, as held in this state, and in several other states of the United States, and in England, is a simple one, just in its principle, politic in its application, because conservative of life and property, and easily understood and applied, while all efforts to vary and qualify it have involved courts undertaking it in endless contradictions and difficulties. The case was not tried on the principles announced in this opinion, and a new trial must be had. Reversed and remanded.