Baltimore & O. R. R. Co. v. McKenzie

• Decision Date: 12 November 1885
• Citation: 81 Va. 71
• Parties: BALTIMORE & OHIO R. R. CO. v. MCKENZIE.
• Court: Virginia Supreme Court

81 Va. 71

BALTIMORE & OHIO R. R. CO. v. MCKENZIE.

Supreme Court of Appeals of Virginia.

November 12, 1885

Argued at Staunton and decided at Richmond.

Error to judgment of circuit court of Shenandoah county, in an action of trespass on the case, wherein McKenzie was plaintiff, and the Baltimore & Ohio Railroad Company was defendant. The object of the action was to recover damages for injuries received by the plaintiff while in the performance of his duties as an express messenger in the employment of the defendant company. The injury so received resulted in the loss of the plaintiff's left arm, and was occasioned by a collision of the train, upon which the plaintiff was, with a large rock which had fallen from the side of a cut upon the defendant's track. It was claimed and the jury found, that the collision was caused by the negligence of the defendant's agents, without fault on the part of the plaintiff, and the judgment in accordance with the verdict having been rendered in the plaintiff's favor, the defendant applied for and obtained a writ of error and supersedeas.

Opinion states the case.

Sheffey & Bumgardner, for plaintiff in error.

H C. Allen and W. R. Alexander, for the defendant in error.

OPINION

LEWIS P.

It is a general rule of law, well settled in England and mostly in this country, that one who enters the service of another, takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment. In other words, the master is exempt from liability to his servants for the fault of their fellow-servants.

The leading case on the subject is Farwell v. Boston & Worcester Railroad Corporation, 4 Met. (Mass.), 49, and the rule, as there announced by Chief-Justice Shaw, has since been acted on in numerous cases, English and American. See Randall v. Baltimore & Ohio Railroad Co., 109 U.S. 478, and cases cited.

There are exceptions, however, to the general rule as well established as the rule itself. Thus the master, to be exempt from liability, must himself have been free from negligence. He is bound to use ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required, and generally to provide for the safety of the servant, in the course of the employment, to the best of his skill and judgment. And if he fail in the performance of his duty in this particular, he is as liable to the servant as he would be to a stranger. Hough v. Railway Co., 100 U.S. 213; Wabash Railway Co. v. McDaniels, 107 Id. 454; 2 Thompson on Negligence, 985-6, section 5.

And where injuries are caused by the negligence of a servant who is charged with the performance of duties which, by law, it is incumbent on the master to perform, such servant is regarded as the representative of the master, and, in legal contemplation, his negligence is the negligence of the master.

Judge Cooley states the rule thus: The master " is not responsible to one person in his employ for an injury occasioned by the negligence of another in the same service, unless generally, or in respect of the particular duty then resting upon the negligent employe, the latter so far occupied the position of his principal as to render the principal chargeable for his negligence as for personal fault." Cooley on Torts, 564.

In Lewis v. St. Louis & Iron Mountain Railroad Co., 59 Mo. 495, it was held that where the servant of a railroad corporation is injured by defects in the machinery or track of the company, the latter cannot defend on the plea that such defects resulted from the negligence of fellow-servants. That was an action to recover damages for injuries sustained by a brakeman in consequence of an excavation alongside the defendant's track; and in the course of its opinion the court said: " It was the duty of the section-foreman to keep the track in repair, and see that everything was right. He was notified of the existence of the hole, and complaint was made to him about it; but he negligently omitted to act, and failed to remedy the defect. Notice to him was notice to the company, and his negligence was the company's negligence."

In the recent case of Chicago, Milwaukec & St. Paul Railway Co. v. Ross, 112 U.S. 377, it was decided by the Supreme Court of the United States that the defendant company was liable to the plaintiff, who was a brakeman in its employ, for injuries resulting from the negligence of the conductor of a freight train, upon which the plaintiff was employed. " In no proper sense of the terms," said the court, " is he (the conductor) a fellow-servant with the fireman, the brakeman, the porters and the engineer. The latter are fellow-servants in the running of the train under his direction; as to them and the train, he stands in the place of, and represents the corporation."

The same doctrine had been previously held by this court in Moon's administrator v. Richmond & Alleghany Railroad Co., 78 Va. 745. In that case the death of the plaintiff's intestate, who was a brakeman, was caused by the concurrent negligence of the conductor, under whose direction he was, and the agents of the company having in charge the repair of the track, and it was held that the plaintiff was entitled to maintain his action.

In delivering the opinion of the court, Judge Fauntleroy said: Inasmuch as " the conductor was not a fellow-servant of Moon, but his superior, and in a position wherein he exercised discretionary authority, and was charged with certain duties for the proper performance of which the law holds the company itself responsible, any negligence on his part in this behalf is the negligence of the company itself." And further he said: " Herndon, the section master, * * could in no sense be regarded a fellow-servant in the same common employment or department of service with Moon, who was a train hand and brakeman. They were not co-employes, thrown together in a common duty, and having opportunity to observe and judge of the habits and qualifications of each other." See also note to the case of C. M. & St. P. R. R. Co. v. Ross, 17 Am. and Eng. R. R. Cas. 501, where the cases are collected.

Applying these principles to the present case, the first question is, whether the circuit court erred in admitting the evidence of the witness Copp.

The substance of the witness' statement was: That while he, Copp, was employed as a section hand by the defendant company, he on one occasion remarked to Thomas Flynn, then the section boss, that if he did not take out that rock-- meaning the rock that fell--" there would be a thundering crash some day; " that he did not know whether Flynn heard him or not, but supposed he did, as " the remark was made near enough for him to hear it." The defendant excepted to this statement, on the ground that the remark to Flynn was not notice to the company, and further because it was made, as the witness testified, thirteen years before the casualty occurred.

And the second question is, whether the conversation between the witness Reddy and Foster, an employe of the company, on the evening preceding the day on which the casualty occurred, was competent evidence, as held by the circuit court.

It appears that Foster was employed as a night-watchman, and as such to watch the cut from the side of which the rock fell; that on the occasion referred to the witness remarked to Foster, just as the latter was leaving his house for the cut, that he had that evening seen water running under and around the rock, and that the rock was dangerous; that Foster then started with his lantern for the cut, saying to the witness that if the rock was dangerous he would not return, otherwise he would, and that he remained in the cut till next morning about six o'clock. It also appears that the track-walker passed through the cut twice that morning between six and seven o'clock, examined it on both sides and found it, in his judgment, in good condition; that three trains of the company passed through the cut that morning, the last at about ten or eleven o'clock, and that the collision occurred at 12:57 that day.

We are of opinion that neither exception is well taken, and that the evidence was properly admitted to be weighed by the jury. Both Flynn and Foster were supervising agents of the company, duly " employed with its authority" --the one a section-master, the other a night-watchman, whose duty it was to guard the track at the point where the rock fell. They were thus charged with the performance of duties which, by law, it was incumbent on the company to perform; and being, to that extent, the representatives of the company, notice to them was notice to the company itself. To hold otherwise, would be to hold that a corporation, whose lines--as we know from the record in the present case--extend into several States of the Union, and over which numerous employes are daily carried, is, so far as the guarding of its track is concerned, virtually without a representative at all. It would be to declare that to be law, which is consistent neither with reason nor sound policy, and the evil consequences of which it is easy to imagine.

But if this be not the correct view, and if in the present case the company is not affected by notice to Flynn and Foster how, it may be asked, could notice affect it? Would notice to an executive officer suffice? And if so, to whom? We are at a loss to answer. On the other hand, let it once be settled that the humblest watchman who walks the track is, within the scope of his employment, the representative of the company that he has eyes to see, ears to hear, and lips to communicate to his superiors the knowledge he acquires as to the condition of the track, or of impending danger, and the law upon this important subject will...