Nicholas Farwell vs. The Boston and
Worcester Rail Road Corporation.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF MASSACHUSETTS, SUFFOLK AND NANTUCKET
45 Mass. 49; 1842 Mass. LEXIS 104; 4 Met. 49
March, 1842, Decided
PRIOR HISTORY: [**1] In an action of
trespass upon the case, the plaintiff alleged in his declaration, that he
agreed with the defendants to serve them in the employment of an engineer in
the management and care of their engines and cars running on their rail road
between Boston and Worcester, and entered on said employment, and continued to
perform his duties as engineer till October 30th 1837, when the defendants, at
Newton, by their servants, so carelessly, negligently and unskillfully managed
and used, and put and placed the iron match rail, called the short switch,
across the rail or track of their said rail road, that the engine and cars,
upon which the plaintiff was engaged and employed in the discharge of his said
duties of engineer, were thrown from the track of said rail road, and the
plaintiff, by means thereof, was thrown with great violence upon the ground; by
means of which one of the wheels of one of said cars passed over the right hand
of the plaintiff, crushing and destroying the same.
The case was submitted to the court on the following facts agreed by the
parties: "The plaintiff was employed by the defendants, in 1835, as an
engineer, and went at first with the merchandize cars, [**2] and
afterwards with the passenger cars, and so continued till October 30th 1837, at
the wages of two dollars per day; that being the usual wages paid to
engine-men, which are higher than the wages paid to a machinist, in which
capacity the plaintiff formerly was employed.
"On the 30th of October 1837, the plaintiff, then being in the employment
of the defendants, as such engine-man, and running the passenger train, ran his
engine off at a switch on the road, which had been left in a wrong condition,
(as alleged by the plaintiff, and, for the purposes of this trial, admitted by
the defendants,) by one Whitcomb, another servant of the defendants, who had
been long in their employment, as a switch-man or tender, and had the care of
switches on the road, and was a careful and trustworthy servant, in his general
character, and as such servant was well known to the plaintiff. By which
running off, the plaintiff sustained the injury complained of in his
declaration.
"The said Farwell (the plaintiff) and Whitcomb were both appointed by the
superintendent of the road, who was in the habit of passing over the same very
frequently in the cars, and often rode on the engine.
"If [**3] the court shall be of opinion that, as matter of
law, the defendants are not liable to the plaintiff, he being a servant of the
corporation, and in their employment, for the injury he may have received from
the negligence of said Whitcomb, another servant of the corporation, and in
their employment, then the plaintiff shall become nonsuit; but if the court
shall be of opinion, as matter of law, that the defendants may be liable in
this case, then the case shall be submitted to a jury upon the facts which may
be proved in the case; the defendants alleging negligence on the part of the
plaintiff."
DISPOSITION: Plaintiff nonsuit.
OPINION: [*55] Shaw, C. J. This is an action of
new impression in our courts, and involves a principle of great importance. It
presents a case, where two persons are in the service and employment of one
company, whose business it is to construct and maintain a rail road, and to
employ their trains of cars to carry persons and merchandize for hire. They are
appointed and employed by the same company to perform separate duties and
services, all tending to the accomplishment of one and the same purpose--that
of the safe and rapid transmission of the trains; and they are paid for their
respective services according to the nature of their respective duties, and the
labor and skill required for their proper performance. The question is,
whether, for damages sustained by one of the persons so employed, by means of
the carelessness and negligence of another, the party injured has a remedy
against the common employer. It [**12] is an argument against such
an action, though certainly not a decisive one, that no such action has before
been maintained.
It is laid down by Blackstone, that if a servant, by his negligence, does any
damage to a stranger, the master shall be answerable for his neglect. But the
damage must be done while he is actually employed in the master's service;
otherwise, the servant shall answer for his own misbehavior. 1 Bl. Com. 431. M'Manus
v. Crickett, 1 East, 106. This rule is obviously founded on the great
principle of social duty, that every man, in the management of his own affairs,
whether by himself or by [*56] his agents or servants, shall so
conduct them as not to injure another; and if he does not, and another thereby
sustains damage, he shall answer for it. If done by a servant, in the course of
his employment, and acting within the scope of his authority, it is considered,
in contemplation of law, so far the act of the master, that the latter shall be
answerable civiliter. But this presupposes that the parties stand to
each other in the relation of strangers, between whom there is no privity; and
the action, in such case, is an action sounding in tort. The [**13]
form is trespass on the case, for the consequential damage. The maxim respondeat
superior is adopted in that case, from general considerations of policy
and security.
But this does not apply to the case of a servant bringing his action against
his own employer to recover damages for an injury arising in the course of that
employment, where all such risks and perils as the employer and the servant
respectively intend to assume and bear may be regulated by the express or
implied contract between them, and which, in contemplation of law, must be
presumed to be thus regulated.
The same view seems to have been taken by the learned counsel for the plaintiff
in the argument; and it was conceded, that the claim could not be placed on the
principle indicated by the maxim respondeat superior, which binds the
master to indemnify a stranger for the damage caused by the careless, negligent
or unskillful act of his servant in the conduct of his affairs. The claim,
therefore, is placed, and must be maintained, if maintained at all, on the
ground of contract. As there is no express contract between the parties,
applicable to this point, it is placed on the footing of an implied contract
[**14] of indemnity, arising out of the relation of master and
servant. It would be an implied promise, arising from the duty of the master to
be responsible to each person employed by him, in the conduct of every branch
of business, where two or more persons are employed, to pay for all damage
occasioned by the negligence of every other person employed in the same
service. If such a duty were established by law--like that of a common carrier,
to stand to all losses of goods not caused by the act of God or
[*57] of a public enemy--or that of an innkeeper, to be
responsible, in like manner, for the baggage of his guests; it would be a rule
of frequent and familiar occurrence, and its existence and application, with
all its qualifications and restrictions, would be settled by judicial
precedents. But we are of opinion that no such rule has been established, and
the authorities, as far as they go, are opposed to the principle. Priestley
v. Fowler, 3 Mees. & Welsb. 1. Murray v. South
Carolina Rail Road Company, 1 McMullan 385.
The general rule, resulting from considerations as well of justice as of
policy, is, that he who engages in the employment of another for the
performance [**15] of specified duties and services, for
compensation, takes upon himself the natural and ordinary risks and perils
incident to the performance of such services, and in legal presumption, the
compensation is adjusted accordingly. And we are not aware of any principle
which should except the perils arising from the carelessness and negligence of
those who are in the same employment. These are perils which the servant is as
likely to know, and against which he can as effectually guard, as the master.
They are perils incident to the service, and which can be as distinctly
foreseen and provided for in the rate of compensation as any others. To say
that the master shall be responsible because the damage is caused by his
agents, is assuming the very point which remains to be proved. They are his
agents to some extent, and for some purposes; but whether he is responsible, in
a particular case, for their negligence, is not decided by the single fact that
they are, for some purposes, his agents. It seems to be now well settled, what
ever might have been thought formerly, that underwriters cannot excuse
themselves from payment of a loss by one of the perils insured against, on the
ground that the [**16] loss was caused by the negligence or
unskillfulness of the officers or crew of the vessel, in the performance of
their various duties as navigators, although employed and paid by the owners,
and, in the navigation of the vessel, their agents. Copeland v. New
England Marine Ins. Co. 2 Met. 440-443, and cases there cited. I am aware
that the maritime law has its own rules and analogies, [*58] and
that we cannot always safely rely upon them in applying them to other branches
of law. But the rule in question seems to be a good authority for the point,
that persons are not to be responsible, in all cases, for the negligence of
those employed by them.
If we look from considerations of justice to those of policy, they will strongly
lead to the same conclusion. In considering the rights and obligations arising
out of particular relations, it is competent for courts of justice to regard
considerations of policy and general convenience, and to draw from them such
rules as will, in their practical application, best promote the safety and
security of all parties concerned. This is, in truth, the basis on which
implied promises are raised, being duties legally inferred from a consideration
[**17] of what is best adapted to promote the benefit of all
persons concerned, under given circumstances. To take the well known and
familiar cases already cited; a common carrier, without regard to actual fault
or neglect in himself or his servants, is made liable for all losses of goods
confided to him for carriage, except those caused by the act of God or of a
public enemy, because he can best guard them against all minor dangers, and
because, in case of actual loss, it would be extremely difficult for the owner
to adduce proof of embezzlement, or other actual fault or neglect on the part
of the carrier, although it may have been the real cause of the loss. The risk
is therefore thrown upon the carrier, and he receives, in the form of payment
for the carriage, a premium for the risk which he thus assumes. So of an
innkeeper; he can best secure the attendance of honest and faithful servants,
and guard his house against thieves. Whereas, if he were responsible only upon
proof of actual negligence, he might connive at the presence of dishonest
inmates and retainers, and even participate in the embezzlement of the property
of the guests, during the hours of their necessary sleep, and yet
[**18] it would be difficult, and often impossible, to prove these
facts.
The liability of passenger carriers is founded on similar considerations. They
are held to the strictest responsibility for care, vigilance and skill, on the
part of themselves and all persons [*59] employed by them, and they
are paid accordingly. The rule is founded on the expediency of throwing the
risk upon those who can best guard against it. Story on Bailments, § 590, &
seq.
We are of opinion that these considerations apply strongly to the case in
question. Where several persons are employed in the conduct of one common
enterprise or undertaking, and the safety of each depends much on the care and
skill with which each other shall perform his appropriate duty, each is an
observer of the conduct of the others, can give notice of any misconduct,
incapacity or neglect of duty, and leave the service, if the common employer
will not take such precautions, and employ such agents as the safety of the
whole party may require. By these means, the safety of each will be much more
effectually secured, than could be done by a resort to the common employer for
indemnity in case of loss by the negligence of each [**19] other.
Regarding it in this light, it is the ordinary case of one sustaining an injury
in the course of his own employment, in which he must bear the loss himself, or
seek his remedy, if he have any, against the actual wrong-doer. *
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* See Winterbottom v. Wright, 10 Mees. & Welsb. 109. Milligan
v. Wedge 12 Adolph. & Ellis 737.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In applying these principles to the present case, it appears that the plaintiff
was employed by the defendants as an engineer, at the rate of wages usually
paid in that employment, being a higher rate than the plaintiff had before
received as a machinist. It was a voluntary undertaking on his part, with a
full knowledge of the risks incident to the employment; and the loss was
sustained by means of an ordinary casualty, caused by the negligence of another
servant of the company. Under these circumstances, the loss must be deemed to
be the result of a pure accident, like those to which all men, in all
employments, and at all times, are more or less exposed; and like similar
[**20] losses from accidental causes, it must rest where it first
fell, unless the plaintiff has a remedy against the person actually in default;
of which we give no opinion.
[*60] It was strongly pressed in the argument, that although this
might be so, where two or more servants are employed in the same department of
duty, where each can exert some influence over the conduct of the other, and
thus to some extent provide for his own security; yet that it could not apply
where two or more are employed in different departments of duty, at a distance
from each other, and where one can in no degree control or influence the
conduct of another. But we think this is founded upon a supposed distinction,
on which it would be extremely difficult to establish a practical rule. When
the object to be accomplished is one and the same, when the employers are the
same, and the several persons employed derive their authority and their
compensation from the same source, it would be extremely difficult to
distinguish, what constitutes one department and what a distinct department of
duty. It would vary with the circumstances of every case. If it were made to
depend upon the nearness or distance of the [**21] persons from
each other, the question would immediately arise, how near or how distant must
they be, to be in the same or different departments. In a blacksmith's shop,
persons working in the same building, at different fires, may be quite
independent of each other, though only a few feet distant. In a ropewalk,
several may be at work on the same piece of cordage, at the same time, at many
hundred feet distant from each other, and beyond the reach of sight and voice,
and yet acting together.
Besides, it appears to us, that the argument rests upon an assumed principle of
responsibility which does not exist. The master, in the case supposed, is not
exempt from liability, because the servant has better means of providing for
his safety, when he is employed in immediate connexion with those from whose
negligence he might suffer; but because the implied contract of the
master does not extend to indemnify the servant against the negligence of any
one but himself; and he is not liable in tort, as for the negligence of his
servant, because the person suffering does not stand towards him in the
relation of a stranger, but is one whose rights are regulated by contract
express or implied. [**22] The exemption of the master, therefore,
from [*61] liability for the negligence of a fellow servant, does
not depend exclusively upon the consideration, that the servant has better
means to provide for his own safety, but upon other grounds. Hence the
separation of the employment into different departments cannot create that
liability, when it does not arise from express or implied contract, or from a
responsibility created by law to third persons, and strangers, for the
negligence of a servant.
A case may be put for the purpose of illustrating this distinction. Suppose the
road had been owned by one set of proprietors whose duty it was to keep it in
repair and have it at all times ready and in fit condition for the running of
engines and cars, taking a toll, and that the engines and cars were owned by
another set of proprietors, paying toll to the proprietors of the road, and
receiving compensation from passengers for their carriage; and suppose the
engineer to suffer a loss from the negligence of the switch-tender. We are
inclined to the opinion that the engineer might have a remedy against the rail
road corporation; and if so, it must be on the ground, that as between the
[**23] engineer employed by the proprietors of the engines and
cars, and the switch-tender employed by the corporation, the engineer would be
a stranger, between whom and the corporation there could be no privity of
contract; and not because the engineer would have no means of controlling the
conduct of the switch-tender. The responsibility which one is under for the
negligence of his servant, in the conduct of his business, towards third
persons, is founded on another and distinct principle from that of implied
contract, and stands on its own reasons of policy. The same reasons of policy,
we think, limit this responsibility to the case of strangers, for whose
security alone it is established. Like considerations of policy and general
expediency forbid the extension of the principle, so far as to warrant a
servant in maintaining an action against his employer for an indemnity which we
think was not contemplated in the nature and terms of the employment, and
which, if established, would not conduce to the general good.
In coming to the conclusion that the plaintiff, in the present case, is not
entitled to recover, considering it as in some measure [*62] a nice
question, we would add [**24] a caution against any hasty
conclusion as to the application of this rule to a case not fully within the
same principle. It may be varied and modified by circumstances not appearing in
the present case, in which it appears, that no wilful wrong or actual
negligence was imputed to the corporation, and where suitable means were
furnished and suitable persons employed to accomplish the object in view. We
are far from intending to say that there are no implied warranties and
undertakings arising out of the relation of master and servant. Whether, for
instance, the employer would be responsible to an engineer for a loss arising
from a defective or illconstructed steam engine: Whether this would depend upon
an implied warranty of its goodness and sufficiency, or upon the fact of wilful
misconduct, or gross negligence on the part of the employer, if a natural
person, or of the superintendent or immediate representative and managing
agent, in case of an incorporated company--are questions on which we give no
opinion. In the present case, the claim of the plaintiff is not put on the
ground that the defendants did not furnish a sufficient engine, a proper rail
road track, a well constructed [**25] switch, and a person of
suitable skill and experience to attend it; the gravamen of the complaint is,
that that person was chargeable with negligence in not changing the switch, in
the particular instance, by means of which the accident occurred, by which the
plaintiff sustained a severe loss. It ought, perhaps, to be stated, in justice
to the person to whom this negligence is imputed, that the fact is strenuously
denied by the defendants, and has not been tried by the jury. By consent of the
parties, this fact was assumed without trial, in order to take the opinion of
the whole court upon the question of law, whether, if such was the fact, the
defendants, under the circumstances, were liable. Upon this question, supposing
the accident to have occurred, and the loss to have been caused, by the
negligence of the person employed to attend to and change the switch, in his
not doing so in the particular case, the court are of opinion that it is a loss
for which the defendants are not liable, and that the action cannot be
maintained.
Plaintiff nonsuit.