Railroad Company v. Fort

Mr. Justice DAVIS

delivered the opinion of the court.

It was assumed on behalf of the plaintiff in error, oh the argument of this cause, that the master is not liable to one of his servants for injuries, resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the ipjury. Whether this proposition, as stated, be true or not, we do not propose to consider, because, if true, it has no' application to this case.

It is apparent, from the findings in the present suit, if the rule of the master’s exemption from liability for the negligent conduct of a coemployé in the same service be as broad as is contended for by the plaintiff in error, that it does not apply to such a case as this. This rule proceeds on the theory that the employé, in entering the service of the principal, is presumed to take upon himself the risks incident to the undertaking, among which are to be counted the negligence of fellow servants in the same employment, and that considerations of public policy require the enforcement of the rule. But.this presumption cannot arise where the risk is not within the contract of service, and the servant had no reason to believe he would'have to encounter it. If *558 it were otherwise principals would be released from all obligations to make reparation to a tí employé in a subordinate position for any injury caused by the wrongful conduct of the person placed over him, whether they were fellow-servants in the same common service or not. Such a doctrine would be subversive of all just ideas of the obligations arisihg out- of the contract of service, and withdraw all protection from the subordinate employes of railroad corporations. These corporations, instead of being required to conduct their .business so as not to endanger life, would, so far as this class of persons were concerned, be relieved of all pecuniary responsibility in case they failed to do it. A doctrine that leads'to such results is unsupported by reason and cauuot receive our sanction.

The injury iu this case did not occur while the boy was doing what his father engaged he should do. On the contrary, he was at the time employed in a service outside the contract and wholly disconnected with it. To work as a helper át a moulding machine, or a common work-hand on the floor of the shop, is 'a very different thing from ascending a ladder resting on a shaft, to adjust displaced machinery, when the shaft was revolving at the rate of 175 to 200 revolutions per minute. The father had the right to presume, when he made the contract of service that the company would not expose his son to such a peril. Indeed, it is not possible to conceive that the contract would have been -made at all if the father had supposed that his son would have been ordered to do so hazardous a thing. If the order had been given to a person of mature years, who had not' engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be .argued that he should have disobeyed it, as he must have known that its execution was attended with danger. Or, at any rate, if he chose to obey, that he took upon himself the risks incident to the service. But this boy occupied a very different position. How could he be expected to know the peril of the undertaking? He was a mere youth, without experience, and not familiar with machinery. Not being *559 able to judge for himself he had a right to rely on the judgment of Collett, and, doubtless, entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so. Indeed, it is very difficult to reconcile the conduct of Collett with that of a prudent man, having proper regard to the responsibilities of his own position and the rights of' others. It is charitable to suppose that he did not appreciate the danger and acted without due deliberation and caution. For the consequences of this hasty action the company are liable, either upon the maxim of respoudeat superior, or upon the obligations arising out of the contract of service. The order of Collett was theip order. They cannot escape responsibility on the plea that he should not have given it. Having intrusted to him the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. If they are not insurers of the lives and limbs of their employés, they do impliedly engage that they will not expose them to the hazard of losing their lives, or suffering great bodily harm, when it is neither reasonable nor necessary to do so. ,The very able judge who tried the case instructed the jury on the point at issue in conformity with these yiews, and we see no error in the record.

Judgment affirmed.

Dissenting, Mr. Justice BRADLEY.

[See Packet Company v. McCue, supra, p. 508.]