Jackson v. Norfolk & W.R. Co.

Decision Date21 April 1897
Citation27 S.E. 278,43 W.Va. 380
CourtWest Virginia Supreme Court
Submitted January 25, 1897

Syllabus by the Court.

1. The test whether a matter is liable to one servant for the negligence of another servant is the character of the negligent act. If it be in the doing of an act incumbent on the master as a duty of the master of the servant, the master is liable; otherwise not.

2. A master's liability to one servant for the negligence of another is not dependent on the grade of the servants, nor on the fact that one has authority over the other, but on the character of the negligent act.

3. A conductor is a fellow servant, with a brakeman and other servants on a train, not a vice principal.

4. All servants engaged in the common services of the same master in conducting and carrying on the same general business, in which the usual instrumentalities are employed, are fellow servants. A proper test of this rule is whether the negligence of the one is likely to occur and inflict injury on the other.

5. If a vice principal, in the particular act in which his negligence occurs, is not in the line of his duty, but performing an act in the line of one who would be a fellow servant with the injured servant, the master is not liable for the negligence of the vice principal, as he is, as to this act, a fellow servant with the injured one.

Dent J., dissenting.

Error to Circuit Court, Mercer county.

Action by Murray T. Jackson against the Norfolk & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Where a servant is injured by a fellow servant's negligent performance of some of the master's duties intrusted to him by the master, the master is liable.

A. W Reynolds and Johnston & Hale, for plaintiff in error.

Douglass & McNutt, for defendant in error.


Jackson was a brakeman in the service of the Norfolk & Western Railroad Company, and was on a freight train with Gilbert as conductor. A train was being backed so as to couple it to some cars. Gilbert was standing on top of the rear car of the train that was backing, and an unsuccessful effort was made to couple the cars, and the train was, drawn forward preparatory to a second attempt, and Gilbert waved the engineer to back up to the car; and Jackson, seeing this, attempted to jump back, and in so doing his arm was caught between the bumpers and crushed, rendering its amputation necessary. Jackson sued the company, recovered judgment, and it sued out this writ of error. The case involves the question whether Gilbert, the conductor, and Jackson, the brakeman, were fellow servants, so as to exempt the company from liability for the alleged negligent act of the conductor in improperly calling the train back when he did.

The defendant's counsel have filed briefs, very lucid and able, in which they ask us to review this subject of fellow-servantcy (to coin a word to express the idea in one word). By "fellow-servantcy" we mean that where there are two servants or employes of a common master or employer, and one of them, from the negligent act of the other, receives injury, the master is not liable for the same, because, when a servant enters the service of a master, he assumes and runs the risks and dangers incident to the service, and it is unreasonable that be should call on the master to make good to him all damages that may befall him from the acts of any and of all fellow servants in the employ of the master. This doctrine originated in South Carolina in 1841, and was followed in Massachusetts in 1842, and was first held in England in 1850. Murray v. Railroad Co. (S. C.) 36 Am.Dec. 268, and full note. The process of the evolution of this doctrine of fellow-servantcy has been a remarkable one, in the fact that it has engendered a discussion in all the courts of the land on frequent occasions, and has caused a woeful conflict of authority in innumerable cases; and he who undertakes to examine it will be wearied in mind, and almost hopeless of extracting from text-books and decisions any certain, definite rule upon the subject. The difficult question is, who are fellow servants? Necessity calls for some test or rule generally applicable in the multitudinous cases everywhere; and a principle of justice here presents itself, furnishing that rule,--putting on the master liability when he should bear it, and leaving with the servant misfortune when he should bear it. That principle logically says that we must look at the act negligently done, causing the injury, and, if the performance of that act is a duty which the master is required by law to do properly, then he is liable, whether he negligently do the act himself, or through another as his servant; but if it is not an act of duty imposed by law upon the master, but one purely the duty of another servant to do properly, both for the benefit of his master and of his fellow servant, the master is not liable. I repeat that it depends on the character of the act negligently done. Is it a duty of the master to the servant? We must therefore see what duties the master owes to the servant. These duties are well summed up according to the received law in Madden v. Railroad Co., 28 W.Va. 617, as follows: "First. To provide safe and suitable machinery and appliances for the business. This includes the exercise of reasonable care in furnishing such appliances, and the exercise of like care in keeping the same in repair and making proper inspections and tests. Second. To exercise like care in providing and retaining sufficient and suitable servants for the business. Third. To establish proper rules and regulations for the service, and, having adopted such, to conform to them. All the foregoing duties, it will be observed, are included in the one general duty of the master to provide a safe plant. The law is well settled that the master is not required to be a guarantor or insurer in this behalf, but is only required to employ reasonable and ordinary care in selecting what he requires, and is necessary for his business." I will add that he must furnish a safe place in which his servant is to work.

The doing of these things is a duty of the master to the servant for the latter's safety. The master can either perform these duties personally, or he may delegate their performance to some one else, whom the books call "vice principal," because he stands, as to these duties, in the place of his master; but if either fails in the performance of duty in any of these respects, and damage results to a servant, the master must answer. If, however, the damaging negligent act is not one of the things which rest on the master as a duty to the servant, it is the act, purely, of a fellow servant, and the injured servant must look to him, not to the master. These duties falling on the master to perform are called in the law books "nonassignable duties," because he owes them to the servant, and he cannot assign them to another to perform, and exempt himself from liability for their misperformance. These duties are sometimes spoken of as duties in construction, preparation, and preservation, as contrasted with mere work of operation. For instance, the construction of the railroad or other work, the preparation of machinery and implements to be used in the business, the preservation of the track or working place, or machinery and appliances, in proper, safe condition, and the selection of proper servants to work. The master having well done his duty in these things, their handling and use in the prosecution of the work designed is a work of mere operation, and this work the servants must perform well, in the interest of their master and fellow servants; and if one fails to do so, and injures a fellow servant, the master is not liable, since he cannot always stand by and watch the servant in his every act in the carrying on or operation of the business, and the law, of necessity, permits him to commit this work of mere operation to other hands. To illustrate: The employer must furnish a good wagon, railroad car or brake, or moving machine, and failing herein, to the injury of his employé using them in ignorance or deficiency, he must repair the injury; but, having them, if one servant by their careless use injure a fellow servant, the master is not to repair his injury. For the misuse of these things by a servant the master would be liable to strangers, but not to another servant, because when he entered upon the service he assumed the risks and dangers that might occur in the business,--among them, the danger that he might receive injuries from the negligence of a fellow servant. It would be unjust to make the master an insurer of every servant against the negligence of every act of other servants, in many instances numbering thousands, working over hundreds of miles, or a widé area of territory, the master necessarily himself absent. What man or corporation engaged in any business could endure such danger and burden? It would be a crying injustice to the farmer, merchant, coal operator, railroad or steamboat company,--to all business operators. The law is severe enough, in holding employers responsible for good track, machinery, etc., as above stated, without making them guarantors for the acts of every servant. You cannot make the master liable for an act of mere operation, no matter by what servant done. You cannot exempt him for an act not one of mere operation, but of his personal duty, though done by any servant. If he does the act in person, he is liable, regardless of the character of the act. Whart. Neg. § 205; Beach, Contrib. Neg §§ 302, 303.

This is the rule of reason and justice. It is supported by the great volume of authority in text...

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