Lawler v. Androscoggin Railroad

Liability of master for injury to servant. The rule that a servant, who is injured by the negligence or misconduct of his fellow-servant, cannot maintain an action against his master for such injury, is not altered by the fact that the servant guilty of negligence is a servant of superior authority whose lawful directions the other is bound to obey. The master of men employed in dangerous occupations is bound to provide for their safety, and this obligation extends alike to the providing of good and sufficient machinery, and to the procuring skilled and judicious workmen by whom it is to be controlled. When the servant injured seeks to hold the master for negligence in failing to procure suitable and proper servants, by whose incompetency the injury was caused, the charge of negligence should be distinctly set forth in an appropriate count.

On exceptions. 'This was an action on the case for injuries received while employed by the defendant corporation in repairing its track-bed under the supervision of its road-master. The defendants filed a demurrer which was sustained, and the plaintiff excepted. The declaration was as follows: “For that the said defendants, at Lewiston, on the third day of January, A. D., 1870, were the owners of a certain railroad running through the city of Lewiston and then out of repair at a certain point in said city of Lewiston, by reason of the washing out of a culvert upon the line of said road, whereby an excavation had been made under the bank upon one side of the said culvert, leaving the top of said bank, consisting of a large mass of stone, gravel and frozen earth, overhanging said excavation, and rendering it very dangerous and perilous to laborers making repairs therein; and the plaintiff, being then and there a laborer employed upon said road, and to assist in repairing the culvert aforesaid, being ignorant of the dangerous condition of said embankment, and in the exercise of due care and diligence, then and there went into the said excavation for the purpose of repairing the said culvert at the request and direction of one Wagg, the road master upon said road, he, the said Wagg, as well as the superintendent upon said road, to wit, one Brown, well knowing the dangerous condition of the embankment aforesaid; yet, nevertheless and notwithstanding the premises aforesaid, the said railroad company, acting by their agent and road-master aforesaid, then and there did wantonly and wilfully permit, request, order and direct the plaintiff to go into 'said excavation and to work therein ; and the plaintiff being and working therein at their request as aforesaid, the said company, by their agent and road master aforesaid, did so carelessly aud negligently manage and conduct, supervise and control the making of said repairs upon said culvert, that the said overhanging bank, ■ consisting of a large mass of stone, gravel and frozen earth, then and there broke off from .the main embankment and fell into the said excavation where the plaintiff was working as aforesaid, falling upon the plaintiff and throwing him with much-violence against a large stick of timber there lying, breaking both of the plaintiff’s legs, crushing, bruising and otherwise injuring the plaintiff, so that he is, by reason of said breaking, crushing, bruising and other injuries, then and there sustained, wholly disabled for the remainder of his life, and hath been put to great pain, suffering aud expense.” It is unnecessary to set out in the declaration that the defendants were in fault in employing an unsuitable man to superintend the repairs of the road. A declaration alleging negligence. generally is sufficient. Hilliard on Remedies for Torts, 227; Indianapolis v. Keiley, 23 Ind., 133 ; Chicago v. Carter, 20 111., 370. A master is liable if his own negligence was the proximate cause of an injury to his servant, though the acts of a fellow servant contributed to produce the result. Shearman & Redfield on Neg., 113, § 87, and cases there cited. The roadmaster was acting for and represented the defendants. Pro hac vice, he was the railroad. A corporation can only act by its servants. Goddard v. Grand Trunk Railway, 57 Maine, 223. The superintendent and road master, with power to employ and discharge hands, are not fellow servants with the laborers they hire. Shearman & Redfield on Neg., 127, § 102. A servant can only recover of his master for an injury when it was caused by the direct act of the master, or by his negligence in hiring an incompetent person to carry on the work, through whose incompetency the accident occurs. Therefore such negligence must be stated in the declaration or it will be bad on demurrer. Schoulcr on Dom. Rel., 642 ; Shearman & Redfield on Neg., § 90; Redfield on Railways, 518, § 131; 2 Hilliard on Torts, 470, § 25; Carle v. B. <& P. C. <& R. R. Co., 43 Maine, 270 ; Buzzell v. Laconia Co., 48 Maine, 113 ; Beaulieu v. Portland Go., 48 Maine, 295 ; Hayes v. Western R. R. Go., 3 Cush., 270; Alhro v. Agawam Go., 6 Cush., 75 ; King v. B. <& W. R. R. Go., 9 Cush., 112 ; Gilshannon v. Stony Brook R. R. Go., 10 Cush., 228; Seaver v. B. <& M. R. R., 14 Gray, 466, and many other cases. It makes no difference, whether the servants are of the same grade or not. 48 Maine, 295.