the master's duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience. of the employer may require. In one the master cannot escape the consequence of the agent's negligence; if the servant is injured in the other he may. A leading case upon this subject is that of Davis v. Central Vermont R, Co.1 It is there held that in an action on behalf of a fireman on a railway company, killed by the washing out of a culvert, the negligence of the company's bridge-builder in constructing, and of the roadmaster in repairing the culvert, is attributable to the company, Ross, J., saying: "The doctrine now established by the United States Supreme Court, and by most of the courts of last resort of the several States, holds the master liable to his workmen for injuries sustained from the negligent performance of duties which rest by the relation upon the master, whether the master performs such duties personally or through an agent or servant. The master's liability has been made to rest upon whether the negligence arose in the performance of a duty for the ford Iron Co., 42 N. J. L. 467; s. c., 36 Am. Rep. 535; Foster v. Pusey (Del.) 14 Atl. Rep. 545; Schultz v. Chicago, etc., R. Co., 48 Wis. 375; Trask v. California R. Co., 63 Cal. 96; Hallower v. Henley, 6 Cal. 209; Peschel v. Chicago, etc., R. Co., 62 Wis. 338; Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20; Cowles v Richmond, etc., R. Co., 84 N. Car. 309; s. c., 2 Am. & Eng. R. R. Cas. 90; Savannah, etc., R. Co. v. Goss (Ga.), 5 S. E. Rep. 777; Chicago, etc., R. Co. v. Avery, 109 Ill. 314; s. c., 17 Am. & Eng. R. R. Cas. 649; Chicago, etc., R. Co. v. Jackson, 55 Ill. 492; Columbus, etc., R. Co. v. Troesch, 68 Ill. 545; Memphis & C. 1. 55 Vt. 84; s. c., 11 Am. & Eng. R. R. Cas. 173. careful discharge of which he became responsible when he assumed the relation of master to the injured servant." Under this rule it has been held that the agents of a railroad company intrusted with the duty of purchasing a locomotive, are not to be regarded as the fellow-servants of those operating it.1 Also that a railroad company is liable to an employe for an injury received by him in consequence of the unskillful, improper, and negligent manner in which the company constructed its road. In such a case the rule exempting the master from liability for an injury to a servant for an injury to a fellow-servant has no application. In Illinois, also, it is held that care in supplying safe instrumentalities in the doing of the work undertaken by the servant is a duty the master owes to the servant, and when the performance of that duty is devolved upon a fellow-servant the master's responsibility in respect of that duty still remains. In such case the negligence of the fellow-servant is the master's neglect of duty.3 § 26.-When the Rule as to Machinery does not Apply.— To hold the master responsible for unsafe machinery furnished for the use of an employe, however, it must be placed in his hands for use. This is illustrated by a 1. Cumberland, etc., R. Co. v. knew, or had reason to know, of State, 44 Md. 283. the defect. Held, that the super 2. Trask v. California So. R. Co., intendent was not a fellow-employe 63 Cal. 96. See infra § 29. 3. Chicago, etc., R. Co. v. Avery, 109 Ill., 314; S. c., 17 Am. & Eng. R. R. Cas. 649. In an action by a wife, for damages for the death of her husband, occurring in the employment of the defendant, it appeared that the death was caused by a fire originating from a defective pipe put up under the supervision of the defendant's superintendent; and it did not appear that the deceased of the deceased in the sense intended by § 1970 of the Cal. Civil Code; and that the work of putting up the pipe, being done under his supervision, was the same as though done by him in person, that the deceased had the right to rely upon the implied engagement of the defendant that the pipe was properly placed and constructed, and that the defendant was therefore liable. Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20. 1 recent New York case, which was an action to recover damages for alleged negligence causing the death of M., plaintiff's intestate. It appeared that M. was employed as a mechanic in defendant's repair shop. By the rules of the shop, known to all the employes, when a locomotive was sent to the shop for repairs, aside from repairing defects reported, a thorough examination was required to be made, to discover and repair other defects, if any. The ordinary course of business was to put the locomotive into the hands of the boiler-makers for examination and repairs, then into the hands of machinists, and finally it was turned over to mechanics to set the safety-valves; this last work was usually committed to M. and another. While they were engaged in setting the safety-valve of a locomotive which had passed through this course, the boiler exploded and M. was killed. The explosion was caused, as the evidence tended to show, by defects in the boiler, which would have been discovered had the boilermakers performed their duty. Those employed in the shop were competent and skillful mechanics: they had reported to the master-mechanic that the locomotive was "all right." The Court held that plaintiff was properly nonsuited, as the death of M. was caused by the negligence of his co-servants; that the case was not within the principle holding the master responsible for unsafe machinery furnished for the use of the employe, as the locomotive was not placed in his hands for use. Where the defective appliance which caused the injury was constructed by a servant no part of whose employment it was to construct such appliances for any body but himself, there can be no recovery. Thus, the owner of a building is not liable to a mason employed by him for injuries occasioned by the defective construction of a 1. Murphy v. Boston & A. R. Co., R. Cas. 510. 88 N. Y. 146; s. c. 8 Am. & Eng. R. ladder by a carpenter also employed by him, it being no part of the carpenter's employment to make ladders for the use of other workmen than himself.1 It has also been held that a building contractor who has provided safe and suitable machinery is not liable for a personal injury to an employe occasioned by co-employes' errors or negligence in selecting the particular appliances; as, portions of a derrick employed in setting stone.2 The doctrine is also modified in respect to cars which one railroad company receives from another for transportation over its road, and it is the general rule that where one company receives a car from another company to be run over its road, it is not bound to test the safety of the car for its servants, but may assume its safety unless the contrary appears. 3 27.-Modification of the Rule.-Peschel v. Chicago, etc., R. Co.In Wisconsin, while the rule stated in the preceding section is fully recognized, there is a distinction made 1. Mercer v. Jackson, 54 Ill. 397. In a recent Iowa case it appeared that the plaintiff was a laborer at work in defendant's stone quarries. He was injured while attempting to ride down an incline on a tram car owing to a defective appliance. Although the tramway was incomplete, the men arranged a temporary plan for running the car under the direction of a certain laborer, who had charge of the tools and kept the time of the men and sometimes gave them directions, but was in general a mere laborer, having no power to govern the construction of the machinery or to purchase or select appliances. The Court held that such a laborer could not be considered as a vice-principal, but was a fellow-servant of the injured employe. Wilson v. Dunreath Red Stone Quarry Co., (Iowa 1889) 42 N. W. Rep. 360. 2. Harms v. Sullivan, I Ill App. 251; see also § 27 for discussion of point involved in this case. 3. Ballou v. Chicago, etc., R. Co., 54 Wis. 269; s. c. 5 Am. & Eng. R. R. Cas. 480; Baldwin v. Chicago, etc., R. Co., 50 Iowa 680; Michigan Cent. R. Co. v. Smithson, 45 Mich. 212; Smith v. Flint, etc., R. Co., 46 Mich. 258; Mackin v. Boston, etc., R. Co., 135 Mass. 201. Compare Gutridge v. Missouri Pac. R. Co., (Mo.) 13 West Rep. 644; Sawyer v. Minneapolis, etc., R. Co., 38 Minn. 103; s. c. 33 Am. & Eng. R. R. Cas. 394; O'Neil v. St. Louis, etc., R. Co., 9 Fed. Rep. 337. between those machines or appliances which are made and put up for doing work in the machine shop of the master, and those which are built and put up where it is to be used by the servant. In the late case of Peschel v. Chicago, Milwaukee & St. P. R. Co., the following facts appeared: The plaintiff, a mason employed with other masons, carpenters and sectionmen in the erection of a water tank and wind-mill for the defendant railroad company, was injured by the falling of a portion of the framework for the wind-mill, which he was assisting to raise. The apparatus for raising such framework consisted of a windlass or crab, tackle-blocks, ropes, the water-tank itself, and an anchor post set in the ground about sixty feet distant, all of which had been placed in position and adjusted under the direction of the foreman. The fall of the framework was caused by the giving way of the anchor-post, which had not been set in the ground to a sufficient depth. The Court, Chief Justice Cole writing the opinion, held, that the whole apparatus for hoisting could not be considered as a single machine which the defendant was bound to furnish adjusted and in position to do the work, but the placing and adjustment of the detached appliances were a part of the work to be done. The injury was caused, therefore, not by any failure of the defendant to furnish proper and safe machinery or appliances, but by the negligence of the foreman in the management of such appliances, who was a fellow servant of the plaintiff. The Chief Justice explained his position as follows: "I see no sufficient reason for saying the defendant was under obligation to furnish the men employed to erect the water tank and wind-mill with a machine or instrumentality for raising the bents in a complete condition ready for use. There is no claim that the materials and appliances provided were not suitable and sufficient 1. 62 Wis. 338. |