Blake v. Maine Central Railroad , 70 Me. 60 ( 1879 )

Appleton, C. J.

It has been settled by an almost unbroken series of decisions that a master is not liable to a servant for an injury resulting from the negligence of a fellow servant in the same general employment. The servant undertakes between himself and his master to run all the ordinary risks of the service, including that of the negligence of his fellow servants. Beaulieu v. Portland Co., 48 Maine, 295. Lawler v. Androscoggin R. R. Co., 62 Maine, 467. Warner v. Erie Railway Co., 39 N. Y. 469. Zeigler v. Day, 123 Mass. 152.

When there is one general object, in attaining which a servant is exposed to risk, if he is injured by the negligence of another servant whilst engaged in furthering the same object, he is not entitled to sue the master; and it does not matter that they were not engaged in the same kind of work. Charles v. Taylor, 3 (L. R.) C. P. Div. 492. Lovill v. Hawk, 1 (L. R.) C. P. Div. 161. Tunney v. Midland Railway Co., 1 (L. R.) C. P. Div. 296. Seaver v. Boston & Maine R. R. Co. 14 Gray, 467.

Nor is the rule that a master is not liable to a servant for the negligence of a fellow servant in their common employment altered by the fact that the servant guilty of such negligence is a servant of superior authority, whose lawful directions the other is bound to obey. Fultham v. England, 2 (L. R.) Q. B. 33. “ A fellow servant I take to bo any one who serves and is controlled by the same master,” observes Dalrimple, J., in McAndrew v. Burn, 39 N. J. 115.

The master is liable lor negligence in the selection of his servants, but he does not warrant their competency. To recover for an injury caused by the incompetency of a fellow servant, it must be shown that such incompetency was known, or should have been known to the master if he had been in the exercise of ordinary diligence. Lawler v. Androscoggin R. R. Co., 62 Maine, 467. 'The master is not liable if he use ordinary care and prudence in the selection of competent workmen and materials. Cotton v. Edwards, 123 Mass. 484. Cummings v. Grand Trunk Railway Co., 4 Cliff. (C. C. U. S.)

The negligence of the master in not selecting competent servants is the basis of his liability, and it must be distinctly set forth in the declaration. The master is under obligation to use due care and diligence in the selection and employment of his agents and servants, and for want of such care is responsible to all other servants for any damages that may thence arise. Harper v. Ind. & St. Louis R. R. Co., 47 Mo. 56. Moss v. Pacif. R. R. Co., 49 Mo. 127. The responsibility is not merely for the negligence of his servants, but for his own. While the duty of a master to his servant requires the exercise of great care in the employment of fellow servants, and the institution of due inquiry to ascertain their character and qualifications, when suitable and competent persons have been employed, the same degree of diligeuee is not required. Good character and proper qualifications once possessed may be presumed to continue, and the master may rely on that presumption until notice of a change. Chapman v. Erie Company, 55 N. Y. 579.

The declaration in the writ sets forth that the plaintiff’s intestate was in the employ of the defendant corporation ; that while so in their employ, and in the exercise of due care and diligence, he was severely injured, underwent great suffering and ultimately lost his life by reason of the careless and reckless acts of certain servants of the defendants employed in and about their business, and intrusted by them “ with the care and conduct of one of their locomotive engines then and there propelled by steam,” to which a car was attached, etc., “ and that said injury, suffering and loss of life were the direct result of the negligence, carelessness and recklessness of the defendants, and of their gross carelessness and negligence in appointing unsuitable employees to manage the running of said locomotive engine and car,” etc.

The demurrer to the declaration is general. Errors, which might be deemed fatal on a special demurrer, will be disregarded when the demurrer is general. The allegation that the injury, suffering and loss of life of the plaintiff’s intestate was the direct result of the negligence, carelessness and recklessness of the defendants, and their carelessness and negligence in appointing unsuitable employees by whom the engine was negligently managed, would seem to be a sufficient averment that the negligence of the defendants in not selecting competent servants was the cause of all the grievances for which remuneration is sought in this suit. As the demurrer admits all the facts sot forth in the declaration, we think a good cause of action is disclosed in the first count. It becomes unnecessary, therefore, to particularly discuss the second count in the plaintiff’s writ.

First count in the writ adjudged good.

Walton, Barrows, Virgin and Libbey, JJ., concurred.