Hanna v. Granger

• Decision Date: 14 March 1893
• Citation: 28 A. 659,18 R.I. 507
• Parties: HANNA v. GRANGER, City Treasurer.
• Court: Rhode Island Supreme Court

28 A. 659

18 R.I. 507

HANNA

v. GRANGER, City Treasurer.

Supreme Court of Rhode Island.

March 14, 1893.

Action by Michael Hanna against D. L. D. Granger, city treasurer of Providence, for damages for personal injuries. Demurrer to declaration sustained. Plaintiff petitions for new trial. Denied.

Cassius L. Kneeland, for plaintiff.

Francis Colwell, City Sol., and Albert A. Baker, Asst City Sol., for defendant.

STINESS, J. The declaration in this case states (1) that the plaintiff was in the employ of the city of Providence as flagman to a steam roller used in repairing streets; (2) that he was subject to the orders of the engineer of said roller, also in the employ of the city, and liable to discharge by him; (3) that, while so employed, the engineer carelessly and suddenly started the roller, without warning to the plaintiff, with great noise, frightening a span of horses used by said city so that they ran into and injured the plaintiff.

These allegations, on demurrer, raise very pointedly the application of what is called the fellow-servant rule. The plaintiff concedes that this rule is applicable to municipal corporations, and we can see no reason why it should not be. Indeed, there is stronger reason for including municipal corporations within its protection than there is for including private business corporations. It has been so applied. Flynn v. Salem, 134 Mass. 351. In Turner v. City of indianapolis, 96 ind. 51, there is a dictum to the contrary, but it is evidently based upon the independence of the fire and street departments as public officers, and cannot be regarded as a general statement. In Coots v. City of Detroit, 75 Mich. 628, 43 N. W. 17, the fellow-servant rule was held not to apply, upon the grounds that a fireman has the rights of a traveler in the streets, independently of his employment by the city; and hence an injury caused by a defective street is not one of the risks incident to his employment. The principle of these cases is not inconsistent with an application of the rule to cases like this one. The rule here invoked is that a master, using due care in the selection of servants, and furnishing suitable appliances, is not answerable to one of them for an injury received in his service by the carelessness of a fellow servant. No one will deny that this is established law, outside of statutory provisions, notwithstanding the limitations, exceptions, and refinements to be found in the multitude of cases where sympathy has misguided judgment. The rule is plain and simple. It marks out a clear boundary of duty and liability. It requires of the master care in selecting servants and providing appliances for the work; it leaves to the servant the risk of accident from the negligence of his fellows against which a master could not take precaution. The cases which have sought to ingraft limitations upon the rule have been too numerous for citation, but they fall into classes, which may be more conveniently considered. One class holds that a laborer in one department is not a fellow servant with a laborer in another and separate department This distinction is recognized in Georgia, Kentucky, Tennessee, and Illinois. 7 Am. & Eng. Enc. Law, 842, and cases cited. It rests upon the fanciful assumption that those engaged in the same department can influence each other to caution and report delinquencies, while those engaged in different departments cannot do so, and hence should not be regarded as within the reason of the rule of fellow servants. This doctrine has been examined and disapproved in this state in Brodeur v. Falls Co., 16 R. I. 448, 17 Atl. 54, and the great weight of authority is against it. Another class of cases holds that employes of different grades, the superior having the right of direction over the inferior, are not fellow servants. Numerous citations of this class may be found in McKinney on Fellow Servants, p. 112, § 43, note 2. At the head of the list stands Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, which for the last ten years has been the principal prop for this doctrine. But in the recent case of Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, the whole subject is most ably reviewed by Mr. Justice Brewer, and the Ross Case is explained; indeed, we may almost say that it is explained away. He says: "The court, therefore, did not hold that it was universally true that, when one servant has control over another, they cease to be fellow servants within the rule of the master's exemption from liability; but did hold that an instruction in such general language was not erroneous when applied to the case of a conductor having exclusive control of a train in relation to other employes of the company, acting under him on the same train." After calling attention to the fact that the decision in the Ross Case was not reached by a unanimous court, four of its members being of the opinion that it was carrying the thought of a distinct department too far, the court, in the Baugh Case, Chief Justice Puller and Mr. Justice Field dissenting, proceed to decide that an engineer and fireman, running alone on a railroad, without a train attached, are fellow servants, and the fireman is precluded from recovering for injuries caused by the negligence of the engineer. At the close of the section cited above, Mr. McKinney says: "On the other hand, the entire doctrine of the liability of the master for a superior's tort to an inferior is unequivocally repudiated by courts whose number and authority (saving the United States supreme court) outweigh that of those favoring the doctrine." In view of the Baugh Case, it would seem that the "saving" clause may now be omitted. In Mann v. Print Works, 11 R. I. 152, it is recognized that mere difference of grade is not sufficient to affect the rule relating to fellow...