Blake v. Maine Cent. R. Co.

• Decision Date: 07 June 1879
• Citation: 70 Me. 60
• Parties: E. PHILLIPS BLAKE, administrator, v. MAINE CENTRAL RAILROAD COMPANY.
• Court: Maine Supreme Court

70 Me. 60

E. PHILLIPS BLAKE, administrator, v. MAINE CENTRAL RAILROAD COMPANY.

Supreme Judicial Court of Maine.

June 7, 1879

ON DEMURRER.

Writ dated October 5, 1876, and contained two counts, to each of which a separate general demurrer was filed and joined; but from the view taken by the court the first count only is stated; the material parts of which are as follows:

" And the defendants then and there employed the said deceased Silas H. Potter, in the capacity of a section man to take charge of their said railroad track between said Waterville and West Waterville, and to keep the same in repair and suitable for the running of trains thereon, and the defendants provided said Potter with a hand-car to go over said portion of the track, which the defendants required the said Potter to go over at proper times and in a proper manner, and it was the duty of the defendants, in running trains over said railroad, to have due regard for the preservation of the life and limb of said Potter while he was in the discharge of his said duties; and while the said Potter, at said Waterville, on the eleventh day of December, A. D. 1875 and in the discharge of his duties as said section man in the employ of the defendants, was riding on a hand-car propelled by himself and others over said section of defendants' track, for the purpose of caring for the same, the defendants, although well knowing their duty and obligations did, on said last named day, at said Waterville, negligently, carelessly, recklessly, willfully and wantonly, and in total disregard of law and of the safety of said Potter and others, lawfully upon said hand-car, by their engineer, Charles W. Low, and conductor Harding M. Dunlap, agents and servants of the defendants, employed by defendants in their business and entrusted by defendants with the care and control of one of their locomotive engines, then and there propelled by steam, and then and there attached to and drawing a paymaster's car from said Waterville through said West Waterville upon and over said section of said railway of defendants at said Waterville, then and there, without any notice or warning to said Potter, and without the actual knowledge of said Potter, and without any fault on the part of said Potter, dispatch and send with great velocity and violence over said railway track (upon that portion thereof which defendants had assigned to the care of said Potter, and upon which the said Potter was then and there lawfully moving upon his hand-car, and in the same direction which said hand-car was going, said locomotive engine, and car attached thereto, against and upon the hand-car upon which said Potter was lawfully riding as aforesaid), at about the hour of seven o'clock and fifteen minutes in the forenoon, then and there instantly crushing a hole in the skull of said Potter, and then and there inflicting upon him mortal and fatal wounds and injuries, whereof the said Potter thereafterwards, to wit: at said Waterville, at about the hour of nine o'clock in the forenoon of the last named day, died; and the plaintiff avers that said Potter was then and there in the exercise of due care and diligence, and that said injury, suffering and loss of life were the direct result of the negligence, carelessness and recklessness of the defendants, and of their gross carelessness and negligence in appointing unsuitable employees to manage the running of said locomotive engine and car--and without the fault of the said Potter, or any other person on said hand-car at the said time with him."

It was agreed by the parties that the case should be submitted to the law court to determine the sufficiency of the declaration, reserving to each the right of amendment given by statute in cases in which demurrers are filed at the return term.

E. F. Pillsbury & J. H. Potter, E. F. Webb, for the plaintiff, contended that this case was not within the rule that one servant of a corporation cannot recover for an injury caused by the negligence of a fellow servant. The employees here were not in the same service, nor of the same grade. The conduct of defendants, as set out in the writ and admitted by the pleadings, is prima facie evidence of his negligence, and the declaration charges enough to hold him. Gilman v. Eastern R. R. Co., 13 Allen 433. Phil. & Read. R. R. Co., v. Derby, 14 How. 483. Fifield v. N. R. R. Co., 42 N.H. 225. Railroad v. Lockwood, 17 Wall. 357, 384. Steamboat v. King, 16 How. 469. Hilton v. Middlesex, 107 Mass. 108. Doss v. Wisconsin, K. & T. R. R. Co., 59 Mo. 27.

J. H. Drummond & J. O. Winship, for the defendant corporation, contended, inter alia, that plaintiff's claim that this case is not within the general rule governing liability of servant for negligence of fellow servant, is groundless; the different kind of service is of no consequence, and so settled in Lawler v. Androscoggin R. R. Co., 62 Me. 466.

As to liability of defendants and in support of the demurrer, the following authorities were cited: Gilman v. Eastern R. R. Co., 13 Allen 433, 10 Allen 233. C. & O. Canal Co. v. Portland, 56 Me. 77. Wood Master and Serv't, § 416, and cases there cited. Id., §§ 417-420. Caldwell v. Brown, 53 Penn. St. 453. Weger v. Railroad, Id. 460. Davis v. D. & M. R. R Co., 20 Mich. 105, (4 Am. 361). Harper v. Ind. R. R. Co., 47 Mo. 357. Moss v. Pacif. R. R. Co., 49 Id. 167, (8 Am. 126). Carle v. B. & P. R. R. Co., 43 Me. 260. Beaulieu v. Port land Co., 48 Me. 291. Dow v. Kansas R. R. Co., 5 Am. 401. Union Pacif. v. Mulliken, 5 Am. 406. Same v. Young, 5 Id. 419. Chapman v. Erie, 7 Am. 357. 55 N.Y. 579. Connor v. Railroad, 8 Id. 357. Proctor v. Railroad, 9 Mo. 440. Hardy v. Carolina R. R. Co., 14 Id. 309.

APPLETON C. J.

It has been settled by an almost unbroken series of decisions that a master is not liable to a servant for an injury resulting from the negligence of a fellow servant in the same general employment. The servant undertakes between himself and his master to run all the ordinary risks of the service, including that of the negligence of his fellow servants. Beaulieu v. Portland Co., 48 Me. 295. Lawler v. Androscoggin R. R. Co., 62 Me. 467. Warner v. Erie Railway Co., 39 N.Y. 469. Zeigler v. Day, 123 Mass. 152.

When there is one general object, in attaining which a servant is exposed to risk, if he is injured by the negligence of another servant whilst engaged in furthering the same object he is not entitled to sue the master; and it does not matter that they were not engaged in the same kind of work. Charles v. Taylor, 3 (L. R.) C. P. Div. 492...