Foster v. Minnesota Central Ry. Co.

• Decision Date: 01 January 1869
• Citation: 14 Minn. 277
• Parties: THOMAS FOSTER v. MINNESOTA CENTRAL RY. CO.
• Court: Minnesota Supreme Court

14 Minn. 277

THOMAS FOSTER

v. MINNESOTA CENTRAL RY. CO.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Steele county, overruling a demurrer to a portion of the answer. Before the argument of the demurrer the parties stipulated to certain facts, the substance of which is stated in the opinion. The demurrer was argued upon the answer and stipulation.

Gorman & Dufour, for appellant.

G. E. Cole, for respondent.

BERRY, J.

The plaintiff brings this action to recover damages for personal injuries to himself, caused by the alleged negligence of the defendant's servants. It appears from the pleadings, case, and stipulation that the plaintiff, at the time the injury was sustained, was a common laborer in the employ of the defendant as a section man, engaged in repairing defendant's railway track; that he was not on the train, nor in any way connected with the running of the same.

The injuries complained of are alleged to have been occasioned by the negligence and carelessness of defendant's servants in so piling wood upon the tender, and in so running the train, that a stick of wood was thrown from the tender, striking the plaintiff upon the head, as he was standing within about twenty feet of the track, fracturing his skull and rendering him permanently blind. Can the plaintiff, under these circumstances, maintain this action? A master, guilty of no personal negligence or misconduct, is not responsible to his servant for injuries resulting to the latter from the negligence, carelessness, or misconduct of a fellow-servant engaged in the same general business.

This proposition is supported by numerous and weighty authorities, and must be-regarded as settled law. Priestley v. Fowler, 3 Mees. & W. 1; Hutchinson v. Ry. Co. 5 Exch. 343; Wigmore v. Jay, Id. 354; Skipp v. Eastern Counties Ry. 9 Exch. 223; Degg v. Midland Ry. 1 Hurl. & N. 773; Tarrant v. Webb, 18 Com. B. (86 E. C. L.) 797; Ormond v. Holland, 1 El., B. & E. 102; Farwell v. Boston & W. R. Co. 4 Metc. 49; Albro v. Agawam Canal Co. 6 Cush. 75; King v. Boston & W. R. Co. 9 Cush. 112; Gilman v. Eastern R. Co. 10 Allen, 236; S. C. 13 Allen, 433; Coon v. Syracuse & U. R. Co. 5 N. Y. 492; Wright v. N. Y. Cent. R. Co. 25 N. Y. 562; Frazier v. Pa. Ry. Co. 38 Pa. St. 104; Noyes v. Smith, 28 Vt. 59; Honner v. Illinois Cent. R. Co. 15 Ill. 550; Illinois Cent. R. Co. v. Cox, 21 Ill. 20; Whaalan v. Mad River & L. E. R. Co. 8 Ohio St. 249; Moseley v. Chamberlain, 18 Wis. 700; Ohio & Miss. R. Co. v. Tindall, 13 Ind. 366; Thayer v. St. Louis, etc., R. R. 22 Ind. 26; Slattery v. Toledo, etc. R. Co. 23 Ind. 81; Carle v. Boston & P. Canal & Ry. Co. 43 Me. 269; Buzzell v. Laconia Manuf'g Co. 48 Me. 113; Fifield v. Northern R. Co. 42 N. H. 225; Hayden v. Smithville Manuf'g Co. 29 Conn. 548; McDermott v. Pacific R. R. 30 Mo. 115; Mich. Cent. R. Co. v. Lahey, 10 Mich. 193.

But it is insisted on behalf of the plaintiff that where the servant sustaining and the servant causing the injury are employed in separate and distinct departments of a general business they are not fellow-servants, and this rule does not apply. This qualification of the rule has been urged, discussed, and considered in many adjudged cases, and the decided weight of authority is against its allowance.

Where the relation between the servant injuring and the servant injured is that of superior and subordinate, there is some conflict of judicial sentiment as to the application of the rule; but upon this matter it is unnecessary for us to express any opinion in this case. But where no such relation exists, the general rule before laid down must be held to apply, and the master exonerated from responsibility, notwithstanding the servants are engaged in distinct departments of the same general service or business. Farwell v. Boston & W. R. Co. 4 Metc. 49; Albro v. Agawam Canal Co. 6 Cush. 75; Gilshannon v. Stony Brook Ry. Co. 10 Cush. 228; Gilman v. Eastern R. Co. 10 Allen, 236; 13 Allen, 243; Coon v. Syracuse & U. R. Co. 5 N. Y. 492; Russell v. Hudson Riv. R. Co. 17 N. Y. 134; Wright v. N. Y. Cent. R. Co. 25 N. Y. 562; Abraham v. Reynolds, 5 Hurl. & N. 142; Hard, Adm'r, v. Vermont & Canada R. R. 32 Vt. 473; Seaver v. B. & M. R. R. 14 Gray, 466; Whaalan v. Mad River & L. E. R. Co. 8 Ohio St. 249; Ohio & Miss. R. R. v. Tindall, 13 Ind. 366; Slatterly v. Toledo, etc., R. R. 23 Ind. 81; Moss v. Johnson, 22 Ill. 633, and several cases before cited.

In the case at bar the plaintiff and the defendant's other servants, by whose negligence it is alleged that the plaintiff was injured, were in the employment of the same master, (the defendant,) under the same general control, (the defendant's,) and engaged in promoting the same general object, to-wit, the operating of the defendant's railroad, — the plaintiff by aiding in the repairs of the track so that trains could be run thereon; the other servants by running trains.

Within the principles of the cases...