“Ah! more of them are killed every year than the number of soldiers who died during the Ashantee war; 1,000 or 1,200 appears to be the annual number in the old country. But it is clearly settled both in England and America, that a servant who is injured through the negligence or misconduct of a fellow servant, can maintain no action against the master,[621] if the latter has taken due care not to expose him to unnecessary danger,[622] and has made a proper selection of servants—competent and trustworthy—and has a sufficient number of them,[623] and has himself not been guilty of negligence,[624] and takes care to furnish and maintain suitable and safe machinery and structures,[625] and if a servant continues his work knowing that his fellows are incompetent, or the machinery defective, he is guilty of contributory negligence.”[626]
“It seems,” remarked my friend, “strange that if my coachman runs over a stranger and kills him, I have to make reparation, but if he runs over the footman and disposes finally of that man of buttons, it is a matter of no importance. And in this case it will prove very hard on the poor family.”
“Ah, well! judges and juries must not be drawn out of the path of duty even by their feelings for the widow and the orphan. The reason of the law is, that when a servant engages to serve a master he undertakes to run all the ordinary risks of the service, which includes, of course, the negligence of fellow servants acting in the discharge of their duty towards their common master.[627] If the rule was otherwise it might become very hard on the master; as Lord Abinger suggests, the footman who sits behind the carriage would have an action against his master if he came to grief through the negligence of the coach-maker or harness maker, or through the drunkenness, neglect, or want of skill of the coachee; in fact the poor master would be liable to his servant for the negligence of the chambermaid, in putting him into a bed with damp sheets, whereby he took the rheumatism; for that of the upholsterer in sending him a crazy bedstead, whereby he fell down while asleep and injured himself; or for the negligence the cook in not properly cleaning the copper vessels used in the kitchen; of the butcher in supplying the family with meat injurious to health; of the builder for a defect in the foundation of the house whereby it fell, and injured both the master and the servants in its ruins.”[628]
“But what is a fellow servant?”
“In England all the servants of the same person, or company, engaged in carrying forward the common enterprise—although in different departments, widely separated or strictly subordinated to others—are fellow servants and are bound to run the hazard of any negligence or wrong doing which may be committed by any of their number,[629] and it makes no difference that the negligence is imputed to a servant of superior authority, whose directions the other was bound to obey.[630] But in some of the American cases, it has been held that employees, who are so far removed from each other as that the one is bound to obey the other, are not fellow servants within the rule;[631] other judges, however, have denied this qualification;[632] and now it seems settled that it is sufficient to bring the case within the general rule, if the servants are employed in the same general service,[633] or under the same general control.”[634]
“All this may be very true, but then you see, my dear Eldon, my man was killed in consequence of the state of the track,” said Jones.
“Why in the name of all that is sacred and profane did you not remind me of that before. In one case a company was held responsible for an injury to one of its servants through the track being out of repair,[635] but in others it was considered that if the line was properly built and inspected it was all that could be required.[636] So you can draw your own conclusions, for I am getting tired of you.”
“Well, I’m off, and am much obliged. But, oh, one point more before I leave you. One of the men was coming from Chicago and had a coupon ticket which he purchased at the station there, does that make any difference?”
“Through tickets do not import a contract with the purchaser on the part of the company selling to carry him beyond the limits of their own line: the coupons are to be considered as so many distinct tickets for each road, sold by the first company as agent for the others;[637] and each successive company is responsible for all injuries to through passengers while upon its own line and in passing to the next company’s line.[638] The companies cannot be considered partners so as to render each liable for injuries or losses occurring upon the whole route.”[639]
“Is not that different from the rule as to carrying goods and baggage, and the rule in England?”