Taylor v. The Evansville And Terre Haute Railroad Co.

• Decision Date: 21 November 1889
• Docket Number: 13,959
• Citation: Taylor v. The Evansville And Terre Haute Railroad Co., 22 N.E. 876, 121 Ind. 124 (Ind. 1889)
• Parties: Taylor v. The Evansville and Terre Haute Railroad Company
• Court: Indiana Supreme Court

22 N.E. 876

121 Ind. 124

Taylor v. The Evansville and Terre Haute Railroad Company

No. 13,959

Supreme Court of Indiana

November 21, 1889

From the Vanderburgh Superior Court.

Judgment reversed.

J Brownlee and W. H. Gudgel, for appellant.

J. E Iglehart and E. Taylor, for appellee.

OPINION

Elliott, C. J.

The appellant was a machinist, in the service of the appellee, engaged in work at its shop in the city of Evansville, under the control of its master mechanic, John Torrence.The master mechanic had the entire control of the shop, of all the employees therein, and of all work; he had full authority to employ and discharge the machinists and workmen, and he had authority to select and to change machinery.On the 21st day of April, 1884, the appellee desired to inspect the head of the equalizer on one of its locomotives for the purpose of ascertaining whether the key could be changed, and its master mechanic ordered the appellant to disconnect the equalizer and remove it from its place in order to enable the master mechanic to examine it.While the appellant was engaged in the work of removing the key of the equalizer, under the master mechanic's direction, the equalizer was negligently pulled out of its place by the master mechanic and it fell upon the appellant and very severely injured him.The equalizer was a piece of iron weighing two hundred pounds, and it was caused to fall upon the appellant by the negligence of the master mechanic, and without any fault on the appellant's part.

It is established law in this jurisdiction that the common master is not responsible to an employee for an injury caused by the negligence of a co-employee.From this rule, so long settled, we can not depart.Indiana, etc., R. W. Co. v. Dailey,110 Ind. 75, 10 N.E. 631;Capper v. Louisville, etc., R. W. Co.,103 Ind. 305, 2 N.E. 749;Indiana Car Co. v. Parker,100 Ind. 181;Bogard v. Louisville, etc., R. W. Co.,100 Ind. 491;Atlas Engine Works v. Randall,100 Ind. 293.

It is also settled that the fact that the one employee is the superior of the other makes no difference, for the question is not one of rank; the question is, were they fellow-servants?If they were, there can be no recovery against the master for injuries caused by the negligence of the co-employee.Drinkout v. Eagle Machine Works,90 Ind. 423;Brazil, etc., Co. v. Cain,98 Ind. 282;Indiana Car Co. v. Parker,supra;Pittsburgh, etc., R. W. Co. v. Adams,105 Ind. 151, 5 N.E. 187;McCosker v. Long Island, etc., R. R. Co.,84 N.Y. 77;Crispin v. Babbitt,81 N.Y. 516;Moore v. Wabash, etc., R. R. Co., 21 Am. & Eng. R. R. Cases, 509.

If Torrence was acting in the capacity of a co-employee at the time his negligence caused the appellant's injury, the action can not be maintained, although he was the appellant's superior, and had the right to retain or discharge him.An agent of high rank may be, at the time an act is done, a fellow-servant of an employee occupying a subordinate position.Hussey v. Coger,112 N.Y. 614(8 Am. St. Rep. 787, 20 N.E. 556).If, for instance, the general superintendent should take hold of one end of an iron rail to assist an employee of the company in loading it on the car he would be, as to that single act, a fellow-employee, although as to other acts he might be the representative of the master.

Where, however, the agent whose negligence caused the injury is at the time in the master's place, then he is not a co-employee, but a representative of the employer.His breach of duty is then the employer's wrong, for in such casesthe act of the representative is the act of the principal.By whatever name the position which the agent occupies may be called, he is the representative of the master if his duties are those of the master; but, if his duties are not those of the master, then he is no more than a fellow-employee with those engaged in the common service, no matter what may be his nominal rank.Indiana Car Co. v. Parker, supra;Pennsylvania Co. v. Whitcomb,111 Ind. 212, 12 N.E. 380;Kruger v. Louisville, etc., R. W. Co.,111 Ind. 51, 11 N.E. 957;Indianapolis, etc., R. W. Co. v. Watson,114 Ind. 20(5 Am. St. Rep. 578, 14 N.E. 721);Louisville, etc., R. W. Co. v. Sandford,117 Ind. 265, 19 N.E. 770;Cincinnati, etc., R. W. Co. v. Lang,118 Ind. 579, 21 N.E. 317;Franklin v. Winona, etc., R. R. Co.,37 Minn. 409(5 Am. St. Rep. 856, 34 N.W. 898);Anderson v. Bennett,16 Ore. 515(8 Am. St. Rep. 311, 19 P. 765);Atchison, etc., R. R. Co. v. McKee,37 Kan. 592, 15 P. 484;Gunter v. Graniteville, etc., Co.,18 S.C. 262(44 Am. Rep. 573).

Our judgment is that, at the time the appellant was injured, Torrence, the master mechanic, was performing the master's duty, and not merely the duty of a fellow-servant.He was in control of the shop where the appellant was working; he was the only representative of the master at that place, men, machinery and work were under his control.He gave the orders which it was the duty of those under him to obey, and he alone could give orders as the master's representative.He gave the specific order under which the appellant acted.He did not join the appellant as a fellow-servant in doing the work, but he commanded it to be done.He was in the position of one exercising authority, and not in that of one engaged in common with another in the same line of service.

The obligation to make safe the working-place and the materials with which the work is done, rests on the master and he can not escape it by delegating his authority to an agent.It is also the master's duty to do no negligent act that will augment the dangers of the service.In this instance Torrence was doing what the master usually and properly does when present in person, for he was commanding and directing the execution of what he had commanded.By his own act he made it unsafe to do what he had commanded should be done.Acts of the master were, therefore, done by one having authority to perform them, and the breach of duty was that of one who stood in the master's place.It is not easy to conceive how it can be justly asserted that one who commands an act to be done, and who possesses the authority to command and enforce obedience from all servants employed in a distinct department by virtue of the power delegated to him by the master, is no more than a fellow-servant, for, in the absence of the master, the command, if entitled to obedience, must be that of the master conveyed through the medium of an agent.Nor can it be held without infringing the principles of natural justice, that if he who is authorized to give the command makes its execution unsafe, the employee, whose duty it is to obey, has no remedy for an injury received while doing what he was commanded to do.Nor do the better reasoned authorities justify such a conclusion.The decisions are conflicting, it is true, but the decided weight of authority is, that where the act is such as the master should perform he is liable no matter by whom the duty is performed."As to such acts," said the court in Flike v. Boston, etc., R. R. Co.,53 N.Y. 549, 553, "the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed."In this instance, Torrence was not a fellow-servant while engaged in commanding work to be done and directing the execution of the command, although if it had appeared that he was engaged with the appellant in doing the work, within the line of the latter's service, it might, perhaps, be otherwise."The true test," said the court in Gunter v. Graniteville, etc., Co., supra, "is whether the person in question is employed to do any of the duties of the master; if so, he then can not be regarded as a fellow-servant, or co-laborer with the operatives, but is the representative of the master, and any negligence on his part in the performance of the duty of the master thus delegated must be regarded as the negligence of the master."The rule thus stated goes further than we are required to do in this instance, for we need go no further than to hold that while engaged in ordering the work to be done, and in supervising its performance, the master mechanic represented his principal; if, however, it had appeared that the master mechanic was not the person in charge of the men and the shop and its equipments, but was, although a superior agent, engaged in doing the same general work as that for which the appellant was employed, it would be different.As the facts appear in the record the master had invested the master mechanic with full authority over the appellant and all others employed in the shop under his control, thus bringing the case within the decision in the case of Atlas Engine Works v. Randall, supra, where it was said: "If the agent or servant to whom the power to command is given exercises that power, and fails to discharge the obligation, to the hurt of the servant who is without fault, the failure is that of the master, and he must respond."In the case now at our bar, the agent who had the power to command, and who exercised it, himself violated the duty which rested upon him as the representative of his principal, and by his own act of negligence brought injury upon the employee engaged in doing...