Indiana Car Co. v. Parker

Decision Date11 February 1885
Docket Number10,163
Citation100 Ind. 181
PartiesThe Indiana Car Company v. Parker
CourtIndiana Supreme Court

Rehearing Date: February 11, 1885

Reported at: 100 Ind. 181 at 196.

From the Henry Circuit Court.

Judgment affirmed.

W. D Foulke, J. L. Rupe, J. H. Mellett and E. H. Bundy, for appellant.

W. F. Medsker, for appellee.


Elliott, J.

The complaint of the appellee alleges that he was employed by the appellant; that while engaged in the discharge of the duties of his employment, he received an injury, and that this injury was caused by the fault and negligence of the appellant in providing unsafe and defective machinery.

In a very able and elaborate brief, counsel for appellant argue that the appellee is not entitled to recover because the negligence which caused the injury was that of a fellow servant, the foreman of the shop in which the appellee was employed; and that for such negligence the employer is not liable.

We concur with counsel in the statement of the general principle, that a foreman is a fellow servant of those working with him, and that for the foreman's negligence in the discharge of his duties as foreman, the master is not responsible to a fellow servant. The overwhelming weight of authority sustains this general doctrine, and our own court has been one among its staunchest supporters, as a long line of decisions attest. Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Wilson v. Madison, etc., R. R. Co., 18 Ind. 226; Slattery v. Toledo, etc., R. R. Co., 23 Ind. 81; Ohio, etc., R. R. Co. v. Hammersley, 28 Ind. 371; Columbus, etc., R. W. Co. v. Arnold, 31 Ind. 174; Sullivan v. Toledo, etc., R. W. Co., 58 Ind. 26; Gormley v. Ohio, etc., R. W. Co., 72 Ind. 31; Robertson v. Terre Haute, etc., R. R. Co., 78 Ind. 77; Boyce v. Fitzpatrick, 80 Ind. 526; Drinkout v. Eagle Machine Works, 90 Ind. 423.

In a recent case, Railroad Co. v. Ross, 31 Alb. L. J. 61, the Supreme Court of the United States, by a divided court, four of the judges dissenting, laid down a somewhat different doctrine, but, as said by a reviewer: "It is probable that a doctrine approved by Chief Justice Shaw and uniformly followed by every State, except three or four, will hold its own against a bare majority decision of the Federal court." 31 Alb. L. J. 81.

In Columbus, etc., R. W. Co. v. Arnold, supra, the principle was applied to a case where the servant injured was a fireman on a locomotive, and the person guilty of negligence was a master mechanic. That case is an extreme one, and does, perhaps, carry the doctrine beyond its limits.

In Robertson v. Terre Haute, etc., R. R. Co., supra, the servant injured was a brakeman, and the agent guilty of negligence was a train dispatcher; and in Drinkout v. Eagle Machine Works, supra, the servant who received the injury was employed as a laborer in the shop of which the agent, guilty of negligence, was a foreman.

In Brazil, etc., Coal Co. v. Cain, 98 Ind. 282, the principle was applied to the case of a "bank boss" in a coal mine, whose duties were the same as those of a foreman. We shall find abundant authority to the same effect outside of our own reports.

In Wilson v. Merry, 1 L. R., 1 Scotch & Divorce App. 326, it was held by the House of Lords that a servant employed as a miner could not recover against the owner of the mine for injuries caused by the negligence of the manager. Decisions involving similar principles will be found in Brown v. Accrington, etc., Co., 3 H. & C. 511; Wigmore v. Jay, 5 Exch. 352; Searle v. Lindsay, 11 C. B. N. S. 428; Howells v. Landore, etc., Co., L. R., 10 Q. B. 62 (11 Moak's Eng. R. 153); Allen v. New Gas Co., L. R., 1 Exch. Div. 251.

In Albro v. Agawam, 6 Cush. 75, the agent guilty of negligence was the superintendent of a factory, and the servant injured was a person employed in running one of the spinning machines, and it was held that the relation was that of fellow servants. Northcoate v. Bachelder, 111 Mass. 322, and Zeigler v. Day, 123 Mass. 152, assert a like doctrine.

In the case of Hard v. Vermont, etc., R. R. Co., 32 Vt. 473, the injured servant was an engineer, and the person guilty of negligence a master mechanic in charge of the locomotives, and it was held that the principal could not be made answerable. Brown v. Winona, etc., R. R. Co., 27 Minn. 162, S. C., 38 Am. R. 285, decides that the relation of fellow servants exists although one is the overseer or foreman. It is, however, held in Iowa that the fact that the superior agent has charge of the subordinate ones does not change the relation from that of fellow servants, unless the superior has authority to hire and discharge subordinate servants. Peterson v. Whitebreast, etc., Co., 50 Iowa 673; S. C., 32 Am. R. 143.

In Blake v. Maine Central R. R. Co., 70 Me. 60, the remark of the judge in McAndrew v. Burn, 39 N.J.L. 117, S. C., 35 Am. R. 297, that "A fellow servant I take to be any one who serves and is controlled by the same master," was approvingly quoted, and it was held that the principle applied, although one servant was subordinate to the other. The Supreme Court of Pennsylvania has held, in several cases, that the fact that one of the agents was a foreman having control of the other does not change the rule, and that they are, nevertheless, fellow servants of a common master. Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Delaware, etc., Canal Co. v. Carroll, 89 Pa. 374; Keystone, etc., Co. v. Newberry, 96 Pa. 246; S. C., 42 Am. R. 543. This is the doctrine of the Court of Appeals of New York. Wright v. New York Central R. R. Co., 25 N.Y. 562; Crispin v. Babbitt, 81 N.Y. 516; S. C., 37 Am. R. 521.

The cases relied on by the appellant do not conflict with the views expressed in the cases cited by us. Rogers v. Overton, 87 Ind. 410, was not an action against the master, but was an action by one fellow servant against another, and is, of course, not at all in point. Boyce v. Fitzpatrick, supra, affirms, in express terms, the general principle of the cases cited by us, but decides that the master is liable for a negligent failure to provide safe machinery. Indiana M'f'g Co. v. Millican, 87 Ind. 87, belongs to a class of cases essentially different from the present, for it decides, what is not here immediately involved, that a master is responsible if he negligently employs an incompetent servant, and thus causes injury to another servant. The decision in Mitchell v. Robinson, 80 Ind. 281, directly affirms the general doctrine as we have stated it in the early part of this opinion, but declares that where the agent stands in the place of an absent master, the master is liable for his negligence in performing duties which the law requires of the master. There is, therefore, no conflict in our cases, and they have a full and firm support from the decisions of other courts.

The rules which these decisions so firmly establish as the law of this State may be thus stated:

First. The master is not liable to a servant for injuries resulting from the negligence of a fellow servant engaged in the same general line of duty, where the negligent act is performed in the capacity of servant.

Second. Servants engaged in the same general line of duty are fellow servants although one may be a superior, and the others may be subordinate servants, under his immediate direction and control.

The facts which it is necessary to consider in connection with the rules of law stated are these: The appellant is a foreign corporation, with its chief officers and agents in another State; it owned and operated a car manufactory at Cambridge City, in this State; this factory was under the general control and management of John McCrie; the wood shop in which the appellee was injured, and where he was employed, was under the immediate control of John Higginson, as foreman.

It is obvious that the rules of law will preclude the appellee from recovering upon the ground that the foreman, in the discharge of his duties as foreman, was guilty of negligence. While Higginson was acting merely as foreman, and not discharging a duty owing by the master to its servants, he was the fellow servant of the appellee. The duties of his position as foreman did not make him anything more than a co-employee, with a higher rank and greater authority than the appellee, and so long as he kept within the line of his duties as foreman, he was a fellow servant, serving a common master. If the negligence which caused the injury occurred while Higginson was engaged in the performance of the duties imposed upon him as an employee in the same general line of service with the appellee, the employer is not liable, because the liability to injury from the negligence of a fellow servant is one of the risks of the service which the servant assumes in entering upon it. The servant does not assume any risk arising from a breach of duty by the master, but does assume the risk of a breach of duty by his co-servants. It is clear that counsel's theory, that the appellee is entitled to recover on the ground that the foreman was guilty of negligence in the performance of his duty as foreman, can not be maintained, and if there is no other ground upon which the appellee can plant his right to a recovery, this appeal must be sustained.

It is the duty of the master to provide suitable and safe machinery, reasonably well adapted to perform the work to which it is devoted, without endangering the lives or limbs of those employed to operate it. The master is not bound to use the highest care, nor to secure the latest and most improved machinery, but he is bound to use care, skill and prudence in selecting and maintaining machinery and appliances, and for a negligent omission of this duty he is answerable to a servant injured...

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