Sidor som bilder
PDF
ePub

under the control of, a common master". cases, English and American.

citing many

In 2 Thompson on Negligence, at page 1040, that author says:

"Nearly all the definitions of fellow-servants given in the books make it essential to the relation that they should be servants of the same master"-citing McAndrews v. Burns, 39 N. J. Law, 119, where it was said, "They are not fellow-servants unless they are all under the direction and control of a common master," also citing Shearman & Redfield on Negligence, § 116, and other cases.

Because they were not subject to the control of the common master, the plaintiff was not in any sense a fellowservant of defendant's employé. Wagner v. Railway Co., 188 Mass. 437 (74 N. E. 919), citing Morgan v. Smith, 159 Mass. 570 (35 N. E. 101); Reagan v. Casey, 160 Mass. 374 (36 N. E. 58); Delory v. Blodgett, 185 Mass. 126 (69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328).

Instances may be found where one servant may become, pro hac vice, the servant of another master, so that the servants of the latter will be his fellow-servants. following cases illustrate this rule:

The

In Laporte v. Railroad Co., 209 Pa. 469 (58 Atl. 860), plaintiff was employed by a coke company to shift cars on a side track of the company; such cars being placed thereon by defendant railroad company, which every morning placed cars on the tracks. Plaintiff's duty was to shift the cars on a side track in front of the ovens of the coke company. On the morning of the accident the cars were delivered on one of the side tracks, and plaintiff was advised by the freight conductor that no more cars were coming on such track. The switch had negligently been left open on the track on which plaintiff was working, and cars intended for another side track ran through the switch and injured plaintiff. Held that, under the act of April 4, 1868 (P. L. 58), the railroad crew and car shifters were coemployés while working in the yard to

gether, and plaintiff could not recover. This case seems to turn upon the provisions of the statute, which are in substance:

*

*

*

"When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company of which company such person is not an employé, the right of action to recover in all such cases against the company shall be such only as would exist if such person were an employé."

See Davis v. Button, 78 Cal. 247 (18 Pac. 133).

In Quinn v. Refining Co., 102 App. Div. (N. Y.) 47 (92 N. Y. Supp. 95), plaintiff was employed, at the time of his injury, by a lighterage company transporting sugar to a dock of defendant sugar refining company, and in such work a winch belonging to the refining company, operated by steam and an engineer furnished by it, was used by the lighterage company, which paid the refining company an agreed price per hour for such use. Plaintiff was injured by the negligence of such engineer. Held that, though the refining company was in a measure interested in the work, the engineer, under such circumstances, was plaintiff's fellow-servant, for whose negligence the refining company was not liable. The doctrine of the case seems to be that where there is unity of service and control in any particular employment, even though one of the servants is in the general employ of another, the law is well established that they are to be treated as coservants as to the particular employment in which they are at the moment engaged, citing Wyllie v. Palmer, 137 N. Y. 248-258 (33 N. E. 381, 19 L. R. A. 285), Higgins v. Telegraph Co., 156 N. Y. 75–78 (50 N. E. 500, 66 Am. St. Rep. 537), and Longa v. Elevator Co., 69 N. J. Law, 31 (54 Atl. 251).

In this last case the servant of Whan, while in a safe place and free from danger in doing his master's work, at the request of the engineer of the elevator company, which was engaged in an independent employment over

which Whan had no control, attempted to loosen the elevator which had stuck fast, and while doing so was killed. Held, that the elevator company was not liable; that if the engineer had authority to employ the decedent they were fellow-servants; if he had no such authority the decedent was a mere volunteer. This case seems to have been disposed of upon the question as to whether the engineer of the elevator company had authority to employ the decedent to assist him in loosing the elevator; and it was said that, if he had such authority, then decedent was a fellow-servant of the engineer, and the plaintiff could not recover. And if the engineer had no such authority from his employer, then the decedent was a mere volunteer, and the company was without liability. We are of opinion that the plaintiff and Crankshaw were not fellowservants.

Was the plaintiff a mere volunteer?

It is earnestly urged by defendant's counsel that the plaintiff was a mere volunteer in the particular work in which he was engaged when injured, and therefore cannot recover. The general rule is well stated in 26 Cyc., at page 1287, as follows:

"One who, having no interest in the work, voluntarily assists the servant of another, cannot recover from the master for an injury caused by the negligence or misconduct of such servant, since he can impose no greater duty on the master than a hired servant."

The same rule is stated in 2 Thompson on Negligence, at page 1045, but that author adds:

Care must be taken, however, to distinguish the case of a mere volunteer from that of one assisting the servants of another, at their request, for the purpose of expediting his own business or that of his master. In such a case, he will not stand in the relation of fellow-servant to them; if he is injured by their negligence, the doctrine of respondeat superior will apply, and their master will be responsible. It is obvious that the real difficulty in these cases will be to determine, on the facts, whether the

person injured was a mere volunteer, or acting in the furtherance of his own or his master's business."

The author cites and quotes from the leading English cases of Holmes v. Railway Co., L. R. 4 Exch. 254, affirmed in Exchequer Chamber, L. R. 6 Exch. 123; Wright v. Railway Co., 1 Q. B. Div. 252.

The former of these cases was said, by Lord Coleridge, C. J., in the latter case, to be one of the greatest authority, because in the Exchequer Chamber seven judges affirmed the decision, for the reasons given by the judges in the Court of Exchequer.

In Bonner v. Bryant, 79 Tex. 540 (15 S. W. 491, 23 Am. St. Rep. 361), the case of Eason v. Railway Co., 65 Tex. 577, was adhered to, which was to the effect that where one having no interest in the loading of a car, or in the carriage or delivery of passengers or freight, volunteers to assist in reference to such matters, and while thus engaged is injured, he stands in the same position as a regular employé engaged in the particular service, so far as the right of recovery for his injuries is concerned; but the case is different where the injured party was acting at the time in furtherance of his own or his master's business. In the principal case 2 Thompson on Negligence, p. 1045, is cited.

In Eason v. Railway Co., supra, the following language is used:

"Thus, when the owner of freight transported by a railway company was allowed to assist in its delivery, and, in so doing, was injured through the carelessness of the company's servants, it was held that he could recover damages of the company "-citing Holmes v. Railway Co., L. R. 4 Exch. 254; Wright v. Railway Co., 1 Q. B. Div. 252. * *

*

"The principle upon which a recovery is allowed is this: The injured person is not a volunteer, but engaged at the request or with the permission of the railway's agent in a transaction of interest as well to himself or his master as to the railroad company, and this entitles him to the same protection against the negligence of the

company's servants as if he were at the time attending to his own private affairs. Though performing a service beneficial to both, he is doing so in his own behalf, and not as a servant of the company. Their request or acquiescence gives him the right to perform the service; the fact that he acts in his own behalf, however beneficial his labor may be to the company, gives him the right to be protected against the negligence of the company's servants."

In Street Railway Co. v. Bolton, 43 Ohio St. 224 (1 N. E. 333), the plaintiff was a passenger on defendant's street railroad on a car northward bound. The railway was a single track, with occasional side tracks for the passage of cars moving in the opposite direction. The north-bound car having been drawn beyond the side track, where it was to have met the south-bound car, it became necessary to push it back to the side track, so that the cars could pass and each proceed to its destination. At the request of the driver of the north-bound car, the plaintiff assisted him in pushing the car back to the side track. While so engaged, without fault on his part, he was injured by the carelessness of defendant's driver on the south-bound car. It was held that the plaintiff did not engage in the service of defendant as a mere volunteer, but that, under the circumstances, the plaintiff could not be considered as a fellow-servant with the driver of the south-bound car; and the doctrine of respondeat superior applies. The court says:

"But it does not follow that under all the circumstances, a person who assists the servants of another in the discharge of their duties, without employment by the master, is to be regarded as voluntarily assuming the relation of a fellow-servant, or the risks pertaining to that relation. To illustrate: Suppose a servant, in driving his master's team on the highway, founders in such a manner as to prevent the use of the highway by others for the time being. Another person, who is thus impeded in the use of the road, assists the servant, either with or without request, to remove the impediments to travel from the highway. Such other person does not thereby become

« FöregåendeFortsätt »