Berry v. New York Cent. & H.R.r. Co.

• Decision Date: 21 May 1909
• Citation: 88 N.E. 588,202 Mass. 197
• Parties: BERRY v. NEW YORK CENT, & H. R. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 197

88 N.E. 588

BERRY v. NEW YORK CENT, & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1909

The following requests for instructions, duly made by the defendant, were refused, and proper exception taken:

'On the evidence, the plaintiff and the crew of the shifter were fellow servants, and the defendant is not liable to the plaintiff for the negligence, if any, of the said shifting crew.

'On the evidence, the jury would be justified in finding that the plaintiff assumed the risk incident to the position he took between the cars and the engine.'

'The test of the question whether the plaintiff and the other men engaged in the same work of making up the train in the joint yard were fellow servants or not is whether they were all subject to the control, orders and directions of the same master for that time, at that place and in that undertaking.'

COUNSEL

J. E. Hannigan, I. Fox, and A. F. Means, for plaintiff.

Archibald R. Tisdale, for defendant.

OPINION

SHELDON J.

The plaintiff, it is now settled by the verdict, received his injuries by reason of the negligence of the members of the shifting crew in the yard at Rotterdam Junction. These men were employed jointly by the defendant and the Fitchburg Railroad Company; and the first question raised by these exceptions is whether the judge should have ruled, in accordance with the defendant's request, that the plaintiff and the members of this crew were fellow servants, and so that the plaintiff cannot recover for an injury occasioned by their negligence.

The operation of this yard and station was provided for by two written agreements between the respective predecessors of the defendant and the Fitchburg Railroad Company. Under these agreements, the operation of the yard and the right to the joint use of the main tracks were to be subordinate to the rules and regulations of the Fitchburg Company; a joint agent and joint employés were to be and were appointed by both companies, and were to be removed at the request of either company. All the employés in the yard were put under the immediate supervision and control of the joint agent, and any employé therein who should be unsatisfactory to either company was to be removed upon its request. Provision was made also for a division of the operating and other expenses of the yard, and it was stipulated that 'each party shall be liable for the damage resulting from the negligence of its own employés not in joint service while working in said yard, or on property jointly used under this contract, and each party will indemnify the other for any claim which it may be compelled to pay by suit or otherwise, arising out of any such case. Should any damage result from the negligence of the joint employés in said yard, then the cost thereof shall be considered a part of the joint operation of said yard, and be borne jointly in the same proportion' as other operating expenses. The plaintiff's injury was caused by the negligence of joint employés in the yard. He was himself in the sole employment of the Fitchburg Railroad, and was not in the joint service of the two companies, unless by reason of the fact that while he was on the premises he was to be, under the agreement between the companies, 'under the immediate supervision and control of the joint agent.' The question accordingly is whether the plaintiff had become, and while in this yard and station was, the servant of the two companies jointly, and so a fellow servant with the employés by whose negligence he was injured.

There is no question that the general servant of any employer may be lent or hired, or in any way temporarily transferred by his master to another for some special service, so as to become, as to that service, the servant of such other person and it is also true that the test by which a court will determine whether this has been done in any particular case ordinarily is whether the servant has become subject to the direction and control of the party to whom his services have been temporarily transferred. It is enough to refer to a few of the cases which have affirmed this doctrine. Munsie v. Springfield Breweries Co., 200 Mass. 79, 85 N.E. 840; Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L. R. A. 114, 104 Am. St. Rep. 328; Samuelian v. American Tool & Machine Co., 168 Mass. 12, 46 N.E. 98; Coughlin v. Cambridge, 166 Mass. 268, 44 N.E. 218; Hasty v Sears, 157 Mass. 123, 31 N.E. 759, 34 Am. St. Rep. 267; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480. But in all these cases, and indeed in all the cases in which this rule has been applied, so far as we have observed, the servant has himself had notice and knowledge of the change of his employer, and has assented thereto, or else has had full notice and knowledge of the circumstances out of which the changed relation was held to have grown as matter of law, and so, by continuing service under the new conditions, has assented to the legal consequences which resulted therefrom. The exemption of a master from liability to a servant for an injury caused by the negligence of other servants in the same employment, like the liability of the master for those breaches of duty for which he may be held liable to his servants, is now commonly rested on the ground of agreement implied in the contract of service. Heffernan v. Fall River, 197 Mass. 28, 83 N.E. 5; Hasty v. Sears, 157 Mass. 123, 125, 31 N.E. 759, 34 Am. St. Rep. 267; Kelly v. Johnson, 128 Mass. 530, 531, 35 Am. Rep. 398; Johnson v. Boston, 118 Mass. 114, 117; Zeigler v. Danbury & Norwalk Railroad, 52 Conn. 543, 555, 2 A. 462; Dowd v. New York, Ontario & Western Ry., 170 N.Y. 459, 63 N.E. 541; Young v. New York Central R. R., 30 Barb. (N. Y.) 229, 234; Blackburn, J., in Howells v. Landore Steel Co. L. R. 10 Q. B. 64; Brett, L. J., in Swainson v. Northeastern Ry., 3 Exch. Div. 341. A servant who has made such a contract with one master cannot be held, against his will or without his consent expressed or implied, to have abrogated or suspended his contract and to have made instead a new contract with a third party. Accordingly, Lord Watson said in Johnson v. Lindsay [1891] App. Cas. 371, 382: 'I can well conceive that the general servant of A. might, by working towards a common end along with the servants of B. and submitting himself to the control and orders of B., become come pro hac vice B.'s servant, in such a sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.'s proper servants, but to exclude the liability of A. for injuries occasioned by his fault to B.'s own workmen. In order to produce that result the circumstances must in my opinion be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and expressly or impliedly consented to that other person as his master, for the purposes of the common employment.' This language was quoted with approval and followed by this court in Morgan v. Smith, 159 Mass. 570, 35 N.E. 101, in which it was said also that the reasons for the rule of the exemption of a master pro hac vice from liability for the negligence of his other servants 'have no application unless the servant knows that he ceases to be under the control of the master who employs him, and passes under the control of a new master.' The same doctrine has been affirmed in other cases, some of which are cited in Morgan v. Smith, ubi supra. See, also, Delaware, Lackawanna & Western R. R. v. Hardy, 59 N. J. Law, 35, 34 A. 986; Missouri, Kansas & Texas Ry. v. Ferch (Tex. Civ. App.) 36 S.W. 487. ...