Fox v. Sandford

• Citation: 36 Tenn. 36
• Parties: ROBERT P. FOX v. E. SANDFORD et al.
• Decision Date: 30 September 1856
• Court: Supreme Court of Tennessee

36 Tenn. 36

ROBERT P. FOX

v.E. SANDFORD et al.

Supreme Court of Tennessee.

September Term, 1856.

FROM KNOX.

The plaintiff, Robert P. Fox, brought this action in the circuit court of Knox county against defendants, Sandford and Shepperd, Leeds and Hoyt, for the recovery of damages for an injury sustained by him while in the employ of the latter three defendants in erecting a house, from the top of which he was thrown, as he alleges, by the negligent and unskilful conduct of defendant Sandford. The defendants, Shepperd, Leeds and Hoyt, were the undertakers of the work, the plaintiff a hand hired to work thereon, and Sandford was also a hired hand and foreman of the job. The accident was occasioned by Sandford in paying out the guy rope connected with the derrick used in elevating the timber to the top of the building, by which the plaintiff was precipitated to the ground, a distance of twenty-five feet, and greatly injured. Shepperd, Leeds and Hoyt were not present at the time of the accident, and gave no orders leading to such a result.

At the February term, 1856, the cause was submitted to a jury before Judge Patterson, who instructed the jury, in effect, that, under such circumstances, the defendants, Shepperd, Leeds and Hoyt, would not be liable, but that if it appeared that the accident was the result of negligence, unskilfulness or rashness on the part of the defendant, Sandford, he would be liable to the plaintiff in damages for the injuries sustained by him. There was verdict and judgment in favor of Shepperd, Leeds and Hoyt, and verdict and judgment for $1,000 damages against defendant Sandford. The latter and the plaintiff appealed in error to this court.

T. C. Lyon, for the plaintiff.

The court instructed the jury in this case, substantially, in respect to the liability of the defendant, Sandford, that if the plaintiff was thrown from the building and injured in consequence of the neglect, unskilfulness or want of proper care on the part of said defendant in unloosing the guy rope, the plaintiff would be entitled to recover. But if he was skilful and careful, and had been guilty of no rashness, want of skill or care, and the injury was the result of causes over which he had no control, the plaintiff would not be entitled to recover. The jury were authorized to look at all the facts and circumstances of the case to arrive at a proper conclusion.

It is assumed that there is no error in this charge, and there was certainly evidence sufficient to support the finding of the jury. Story on Ag., sec. 453 e, p. 574.

As to the liability of defendants, Shepperd, Leeds and Hoyt, arising on the state of facts in the record, the court instructed the jury that when two persons are acting in a common employment under the same principal, if one is injured through the negligence, unskilfulness or rashness of the other, the principal is not liable to the injured party. The court further told the jury that the principals would not be responsible for the condition of the derrick on the morning of the accident.

It is admitted that there are highly respectable authorities, American and English, which fully sustain the position assumed by the circuit judge in the above charge. These cases will be found cited in Story on Ag., sec. 453 d note 1, and sec. 453 e, note 1. These cases are of the first impression in these courts, and were, it is admitted, elaborately and ably argued, particularly by Chief Justice Shaw.

The supreme court of Ohio, has, on the other hand, adopted a different rule, and holds the principal liable to the agent or servant for the misfeasance or neglect of the co-agent or servant.

We maintain that the principle of total exemption from responsibility of the employer is too broadly stated in each of the cases above cited. The case in 3 Mee. & W. is correctly decided, but we do not assent to the whole course of reasoning of the learned judge. His argument is principally founded on the inconvenience of maintaining the opposite rule. This is an unsafe mode of argument, and he has with much skill and plausibility pushed the argument to extreme and absurd consequences. He says, however, in this opinion, that the master is “no doubt bound to provide for the safety of his servant in the course of his employment to the best of his judgment, information and belief.”

This is all that we maintain. And if the master is so bound, is there not a legal responsibility if he fails to perform this duty? There is no legal duty without its corresponding obligation.

O. P. Temple, for Shepperd, Leeds and Hoyt.

We do not controvert the general principle laid down by Blackstone and other writers, with its qualifications, that if a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect. The question presented in this case is, Where several persons are engaged in the same general service as hirelings, and one of them is injured by the carelessness or unskilfulness of another, is the employer responsible?

His honor the circuit judge held that he was not, and we think he held correctly. This view is sustained in the case of Priestly v. Fowler, in 3 Mee. & W. 1. One reason, among many others, for this holding there given is, that “the servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.

This question was recently decided in the same way by the supreme court of Pennsylvania, in the case of Ryan v. The Cumberland Valley Railroad Company, as reported in the American Law Register for August, 1855, p. 598. The court say in that case this ‘is the rule even where the careless one is the superior of the other, or has a special duty to perform upon which the safety of the others depends.” See, also, 2 Kent, 281, note c and note 1. Story on Ag., sec. 453.

In the case of slaves, on principles of humanity, it is right that the master should be required to protect one against the negligence of another. The slave is bound to obey; he has no discretion to refuse the service; hence, if his life is lost, or he is injured, in service of unusual risk and hazard, when he was hired for ordinary service, this court has held that the hirer shall be responsible in damages to the owner. Mullen et al. v. Ensley et al., 8 Humph., 428. But not so in the case of servants or laborers for hire. Here “both are equal before the law, and considered equally competent to take care of themselves, and very often the servant is the more intelligent of the two.” The relation of protection and dependence does not exist; therefore the servant must look to the danger, and provide against it by increased compensation where he undertakes the service, or he may decline it altogether.J. R. Cocke, for Sandford, said:

The court instructed the jury “that if it appeared in evidence that Fox, the plaintiff, and Sandford, the defendant, were both in the employment of Shepperd, Leeds, and Hoyt, engaged in a common employment, and the injury to the plaintiff was occasioned by the neglect and unskilfulness of the defendant Sandford, yet, under the weight of authority, English and American, the court felt constrained to charge the jury that the defendants Shepperd, Leeds, and Hoyt could not be held liable in damages for such neglect and unskilfulness on the part of the defendant Sanford.”

The distinction attempted to be established in this case has not, it is admitted, been recognized either in England or America until within the last few years. The language of the judges and of writers on the law has been that principals were liable to third persons for the misfeasances, negligences, and omissions of duty of their servants and agents, without making any difference between strangers and fellow-servants. It is evident that Mr. Justice Story is not satisfied with the doctrine laid down in the case of Priestly v. Fowler, 3 Mee. & W., 1, and the case of Farwell v. The Boston & Worcester Railroad Corporation, 4 Metc., 49. In section 453 f of his work on Agency he gives a number of cases in which the rule, if applied, would work the grossest injustice. The case of Ryan v. The Cumberland Valley Railroad...