Buckley v. Gould & Curry Silver-Min. Co.

• Decision Date: 09 November 1882
• Citation: 14 F. 833
• Parties: BUCKLEY v. GOULD & CURRY SILVER MINING CO.
• Court: U.S. District Court — District of Nevada

14 F. 833

BUCKLEY v. GOULD & CURRY SILVER MINING CO.

United States Circuit Court, D. Nevada.

November 9, 1882

W. E F. Deal, for plaintiff.

B. C Whitman and M. N. Stone, for defendant.

SAWYER C.J., (orally.)

We have carefully considered the motion to instruct the jury to find a verdict for defendant in this case. The main question is whether the engineer--runner, as he is termed, of this engine-- is a fellow-servant with the plaintiff in this case within the meaning of the rule, which asserts the principle that the master is not liable for an injury resulting to one servant from the negligence of a fellow-servant in the same line of employment. We are fully satisfied that he is a fellow-servant within the principle and meaning of the rule. We have no doubt on that point. We do not think Hough v Railway Co. 100 U.S. 213, cited by the plaintiff militates against that proposition. On the contrary, we think it is an authority directly in favor of defendant in this case. The court in that case recognizes the rule; it does not question it; it only notices the distinction which takes that case out of the rule. Mr. Justice HARLAN, in delivering the opinion, says that the English authorities go much further in favor of the doctrine of the immunity of the master from the responsibility for injuries received by a servant in consequence of the negligence of his fellow-servant in the same line of employment, than the American courts. But the decision in Hough v. Railway Co. is put upon another ground namely that the act complained of in that case was the act of the company itself. A corporation must always act through its agents. The rule is recognized that the company is bound to use all reasonable care and diligence in furnishing suitable and safe machinery for its servants to work with. In that case there was a violation of that rule. The defendant did not furnish good and sufficient cowcatcher and steam-whistle. The accident occurred in consequence of improper condition of the locomotive engine. The engine ran off the track by reason of a defective cow-catcher and the steam-whistle was blown or knocked off in consequence of not being properly fastened, and the engineer was scalded to death by the escaping hot steam. It was the duty of the company to use all reasonable diligence to furnish a safe engine. To furnish a safe engine is one thing, but its management by the engineer is quite another. The engineer was simply an employe, working with the machinery. That machinery had to be furnished by those charged with that duty. Those men in charge, furnishing and supervising the engine, were the agents of the corporation for that purpose. This service could only be performed by a corporation through agents. Therefore their acts were the acts of the corporation, and not merely of fellow-servants. They were the acts of the corporation, through its agents, in furnishing machinery to work with. The decision is put upon that ground alone, and the court recognizes it as not being within the rule. It would have been the same in this case if the engine that was used in this mine had been a rickety, defective old engine, out of order, and the accident had resulted from the use of that engine in consequence of its defects. Then this case would have been precisely like the one cited.

But the foundation of this action is that the accident was the result of the carelessness of the man who was running the engine. He was not an agent of the company. He had no authority over the plaintiff. He was merely a workman running an engine under the direction of a chief engineer, a general foreman, and a superintendent of the mine. It was not his business to furnish the engine. He had no authority whatever. He was co-operating with plaintiff in sinking the shaft. He was simply a fellow-servant co-operating in sinking the shaft. We do not think it makes any difference whether he was running an engine, or working with a wheel and axle, a pulley and bucket, or carrying the material up and down a ladder upon his shoulders. He was doing the same work, but doing it by different means. Every man below performed his part of the work in sinking the shaft-- the work in which they were all engaged. They were working together in the same department in excavating this shaft. The fact that the engine-runner, as he is called, was using a different instrument in carrying the material up and supplies down makes no difference. It was work done in a common employment to accomplish a common end-- the sinking of a shaft. One servant performed one part, and another another part.

In the old Spanish mines, in early days, and even yet in some parts of Mexico and South America, the ore is carried in sacks upon the backs of men by climbing up and down ladders, instead of using an engine. In sinking this shaft, if instead of the steam-engine used in carrying down the fuse and powder for a blast-- the work actually engaged in at the time of the accident--or in raising the rock, the party running the engine had gone up and down a ladder, carrying the material used in mining down, and the rock up, we apprehend that no one would have asserted, that he was not a co-servant in sinking the shaft-- that he was not performing a common service in the same line or department of employment with those below. The fact of using another appliance does not change the character of the act; it was the same work. The authorities go to that extent. Take the case of Wood v. New Bedford Coal Co. 121 Mass. 252. The plaintiff was a laborer employed in hoisting coal by machinery, operated by a steam-engine. When it was hoisted to a certain height the man running the engine was to stop it. There was a man near the point where the coal was discharged to manage and empty the coal by means of a crank. The engineer hoisted the bucket too high, so that it went past the point where he should have stopped, and thereby the man at the crank was struck by it and severely injured. In that case the engine-runner and the man at the crank aiding to discharge the coal were held to be fellow-servants in the same department of employment, and the company not liable. That is in all respects like this, at least so far as the principle is concerned.

Again, in Kelly v. Norcross, 121 Mass. 508, the carpenters were charged with building a staging. The employers furnished suitable materials and committed the duty of building the staging to the carpenters, who had charge of the work themselves. The carpenters were superintending the construction of the staging, and the accident resulted from their negligence. An accident happened by which the staging fell and injured some of the laborers. They were held to be fellow-laborers within the rule.

In another case-- Holden v. Fitchburg, R.R. 129 Mass. 268-- the head-note reads:

'The rule of law that a servant cannot maintain an action against his master for an injury caused by the fault or negligence of a fellow-servant is not confined to the case of two servants working in company, or having opportunity to control or influence the conduct of each other, but extends to every case in which the two, deriving their authority and their compensation from the same source, are engaged in the same business, though in different departments of duty; and it makes no difference that the servant whose negligence causes the injury is a sub-manager or foreman of higher or greater authority than the plaintiff.

'A railroad corporation is not liable to a brakeman on one of its trains for injuries suffered from the negligent setting up and use of a derrick by workmen employed in widening its railroad.'

In this case parties were employed in widening the road, and, for the purpose of performing that work, a derrick was erected. That is no part of the business of running a railroad. It is widening a road-- enlarging its facilities. A train coming along, this derrick fell, and a brakeman passing this wreck was injured by a rope attached to the fallen derrick. He was engaged in running the train. The other men were engaged in widening the road for the company. They were held to be fellow-servants within the meaning of the rule. If they were so, these parties here must be fellow-workmen.

In Cooper v. Mil. & Pra. du C.R. Co. 23 Wis. 669, a flagman, who failed to properly notify the train of a break in the road, was held to be a fellow-servant with a brakeman on the train, killed in consequence of the negligence.

So, also, in a Wisconsin case, where a train went out to clear the track of snow. They had a party of snow-shovelers, designed to shovel off the road. The conductor concluded to clear the road at a certain point with a snow-plow. He made a rush into the snow with his snow-plow, and the result was that the train was thrown from the track. One of the snow-shoveling party, going to his work, was injured. The snow-shoveler injured was held to be a co-laborer in the same employment with the conductor, and the employer not liable on that ground. Howland v. Mil., L.S. & W.R. Co. 13 Reporter, 607; also see cases cited.

In Michigan, an engineer and conductor of freight trains are held to be fellow-servants. Mich. C.R. Co. v. Dolan, 32 Mich. 510.

In Collier v. Steinhart, 51 Cal. 117, it was held that the engineer running the engine to hoist water from a mine, by whose carelessness a tub of water fell upon a laborer at the bottom of the mine and injured him, was a fellow-servant with the party injured, within the rule.

So in McLean v. Blue Point Gravel Min. Co. Id. 257, McLean being the hydraulic department, was injured by the carelessness of Regan, foreman in the blasting department of the 'general business.' McLean and Regan were held to be fellow-servants within the rule.

These are only a...