WALKER vs. BOLLING, 22 Ala. 294

GOLDTHWAITE, J.- A master is liable to third persqns for the misfeasance, negligence or omissions of duty of his servant, acting within the scope of his employment. Story on Agency, § 416; Paley on Agency 224-5. And the rule is based upon principles of public policy, growing out of the general relations which the party who is held responsible occupies to the public, which require every one in the management of his own affairs, whether by himself or agent, so to conduct them as not to injure others. Farewell v. The Boston and Worcester Railroad, 4 Met. 49.

The courts have refused, upon considerations peculiar to the relation of master and servant, to apply this rule to one who receives an injury from the negligence of another, while both are acting in the common business of the same master. Priestly v. Fowler, 3 M. & W. 592; Hutchinson v. The Railway Co. 5 W. H. & G. 341; Wigmore v. Jay, ib. 354: Murray v. S. C. Railroad Co., 1 McMullan 385; Farewell v. The Boston & Worcester Railroad, supra ; Strange v. McCormick; Brown v. Maxwell, 6 Hill 592; Coon v. Utica Railroad, 6 Barb. 231; Hayes v. The Western Railroad, 3 Cush. 270.

As to the correctness of these decisions, whether the restriction imposed by them upon the application of the rule is too general and unqualified, or whether its limitation should not be confined to those, cases only, in which the character of the common business is such that it may fairly be implied that the servant intended to take the risk resulting from the negligence of those associated with him, it is unnecessary, in the present case, to inquire.

It may be conceded, so far as this case is concerned, that the master is not under the same legal liability to his servant, under certain circumstances, as to third parties; but we do not understand from the decisions referred to, that the master is absolved from all obligation or duty towards the servant.

He is bound to use ordinary care ; he must not expose him to unnecessary risk; and indeed, the leading cases on which the counsel for the plaintiff in error relies to establish the position he contends for are, that the master is not bound to use more than ordinary care towards those who stand in the relation of servants to him.

If he fails in the discharge of his duty in this respect, and the servant thereby sustains an injury, he is responsible; while, on the other hand, if he discharges this duty, the servant is presumed to take all the risks which enter into the service, including those which he would incur from the negligence of his fellow servants. Upon the principle of these decisions, it was ordinary care towards the servant, when the master associated with him in the common business, persons of ordinary skill and care. This is, in effect, the reasoning of Lord Abinger in Priestly v.

Fowler, supra, and of Baron Alderson in Hutchinson v. The Railway Co., supra.

But the master does not discharge this duty; or, iu other words, does aot use due care, when he exposes the servant to danger by associating with him, in a service of peril, those who are wanting in ordinary skill and prudence; and if the master chooses to do this, or his agent does it, the former will he held, accountable, and it is no excuse for him to say, “ I delegated a duty arising from tbe relation I occupy, to a third person, who was in all respects competent to discharge it, and his neglect was one of the risks which the servant took.” The answer would be, that the agent must be regarded as the master, and not as the servant, so far as this duty was concerned.

In the present case, the evidence shows gross negligence, and a criminal inattention to his duties, on the part of the engineer. It was the duty of the captain to protect the subordinate agents, employed in the common business, from the probable consequences of such neglect, by the prompt discharge of the person who, by his carelessness and recklessness, was endangering the lives of all on board; and this duty, as we have already said, devolved upon him, not as the servant, but as the master, as the representative of the owner.

This duty he did not discharge; and for the injurious consequences of this neglect, the owner is responsible. The fact that the engineer had been licensed was prima facie proof of his competency, but that would not have authorized the owner to have retained him in his employment after he was aware that, by so doing, be was exposing tbe lives of bis other agents in the same business; and tbe same principle applies to the person representing him as owner. The rulings of the court below being in accordance with the views we have expressed, there is no error in the record, and the judgment is affirmed. PHELAN, J.

The opinion of the court, as delivered by my brother Goldthwaite, does not fully meet tbe views on which I prefer to rest tbe decision of this case. I therefore respectfully submit the following as my own views on the main question involved. It is well settled law, that the master or principal is liable for injuries done to third persons, by acts of negligence or unskillfulness on the part of his servant or agent, in the course of his emplojunent. 1 Ld. Raymond 261.

This is a broad and simple rule, as respects those who are denominated strangers, or persons having no connection or privity with either the master or servant. Story on Agency, §§ 452, 456. The chief question here is, whether the same rule applies in the case of different agents or servants in the employment of the same principal or master, where one servant by his negligence does an injury to his fellow servant? The extensive systems of agents and sub-agents connected with the business of modern society, make this a question of much delicacy'and importance.

The only adjudications we find on the subject are of comparatively recent date. The first case in which the question arose is that of Priestly v. Fowler, 3 Mees. & Welsh. 592. Here two servants of the same master were employed in conveying goods of the master in a van, and by the negligence of one of them, in overloading the van, it broke down and injured the other, who brought an action against the master. It was held, that the action would not lie. Lord Abinger, who decided the case, makes an argument against allowing such an action, based upon public policy. His argument is, perhaps, a little too refined.

The general burthen of it, however, is, that public policy requires that, in such a case, a servant, as to the acts of his fellow servants, must look out for his own safety. He makes, besides, this observation: “ He (the master) is no doubt bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information and belief.’'' About the same time that the case of Priestly v. Fowler was decided in England, the case of Murray v. South Carolina Railroad Co., 1 McMullan 385, was decided in this country.

In this latter case, in consequence of the negligence of the engineer in not checking the speed of the locomotive in time, when there was a horse upon the track, of which he was admonished, the cars were thrown off the track, and the plaintiff) who was a fireman, had his leg broken, for which he brought an action against the company. It was held, that the action would not lie. The case of Farwell v. The Boston and Worcester Railroad Co., 4 Metcalf 49, comes next under review in this connection.

In this case, two persons were employed by the Railroad Company, one as engineer to the locomotive, and the other to tend the management and shifting of the switches on the road. The latter negligently left or put one of the switches in snob a .position that the cars were thrown off the track, whereby the engineer was injured, who brought his action against the Company. It was held, that the action would not lie. C. J.

Shaw puts the decision mainly upon the ground, that “he who engages in the employment of another for the performance of specified duties and services, for conrpensation, 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,” he remarks, “ of any principle which should exempt 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. 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.” The two next cases we find are English cases, which were considered together, and are reported in the Law Reporter for December, 1850, p. 379, Wigmore v. Jay, and Hutchinson v. The York Railroad Co. In the former case, the plaintiff’s intestate, who was a common laborer, was killed by the falling of a scaffold.

The head carpenter, at the time the scaffold was erected, allowed a pole which was unsound to be used, even after its unsoundness had been pointed out to him, and in consequence of its unsoundness the scaffold fell and killed the plaintiff’s intestate’ This action was brought against the common employer by bis widow and administratrix, under Lord Campbell’s Act, which gave an action for the benefit of tbe family of any one who had been killed by negligence, against those guilty of tbe negligence. It was held, that the action would not lie.

In the latter case, which was also a case under Lord Campbell’s Act, the plaintiff’s intestate, whilst engaged in the service of the Company, was killed by a collision of tbe Railroad trains, produced through tbe negligence of other servants of the Company. The court held, that the Company was not liable. The English court in these cases put tbeir decision upon tbe same ground as that taken by C. J. Sbaw in tbe case in 4 Metcalf, although they do not seem to have been aware of that decision.

They say: “ The principle is, that a servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both.” Mr.

Baron Alderson, however, adds this observation: “Though we have seen that a master is not, in general, responsible to one servant for an injury occasioned to him by the negligence of another servant, while they are acting in one common service, yet, this must be taken with the qualification, that the master shall have taken due care not to expose his servant to unreasonable risks.

The servant, when he agreed to run the risks of the service, including those arising from the negligence of his fellow servants, has a right to understand, that the master has taken reasonable care to protect him from such risks, by associating him with persons of ordinary skill and care.” The same general doctrine was held in a subsequent case in Pennsylvania. Strange v. McCormick, Law Reporter for April, 1851, p. 619. It has been also referred to and approved in a case in New York. Brown v. Maxwell, 6 Hill 592. See also Coon v. Utica and S. Railroad Co., 6 Barbour 231.

We gather from these cases certain general principles which may be thus stated: Where several servants, or classes of servants, are employed about a common service, it is the duty of the common employer to exercise reasonable care for the safety and protection of all, by providing persons of ordinary skill and ability for each particular part of the 'Service.

Further; that for all injuries which may result to one servant from the negligence of a fellow servant, acting as servant, .the common employer, as a general rule, is not responsible, because the servant stipulates, impliedly, to run the ordinary risks of the service, among which are to be considered such acts of negligence on the part of his fellow servant; hence, such acts, in respect to him, are not the acts of the master through his agent, but the acts of the wrong-doer simply, to whom alone he can look for redress.

But an important inquiry meets us here, not embraced by these principles, and which we do not find to be covered by any of the adjudicated cases.

It is this: When there is a general manager or superintendent of the service, with inferior agents or servants, or classes of agents or servants under him, and such general manager or superintendent is invested by the common employer with the duty and authority of employing and dismissing those who are under him, are acts of negligence on the part of such general manager to be considered as falling within the ordinary risks of the service, for which the common employer is not responsible ?

And again; even if other acts of negligence will be so regarded, are we so likewise to regard his acts of negligence in not exercising reasonable care and diligence in not employing competent inferior officers and servants, or in not dismissing such as prove incompetent ? In regard to all other acts of negligence on the part of the general manager or superintendent, I decline to express an opinion until the case arises.

But with respect to the last mentioned kind of negligence, namely: that of failing to exercise reasonable care in procuring competent inferior officers and agents, where that falls within the scope of his duty, or in dismissing such as prove to be incompetent, I must hold, that they cannot be included among the risks for which the master or common employer shall not be held responsible.

To hold otherwise, would be, as I maintain, to destroy the valuable general principle recognized and established in the very cases which have been quoted, in which it is held to be the duty of every master or principal to provide men of ordinary care and skill for each particular station, for the safety 'and protection, not only of strangers, but of those engaged in his service. This duty of the master is expressly retained in the very cases where he is held not to be subject further than this for injuries which may result to one servant from the acts of negligence of his fellow servant.

Whether the master will do this or not, is no part of the ordinary risks of the service; he is strictly held to the performance of it at all times. See Wigmore v. Jay, and Priestly v. Fowler, supra.

It follows, also, that the law will not allow any shift by which that may be done indirectly which cannot be done di~. rectly; in other words, the law will not allow a master, whose duty it is to employ none but men of ordinary care and skill, in all branches of the service, to devolve the duty of making such employment on his general manager, who may be irresponsible, and by such means become irresponsible himself, for a neglect of this important duty.

As to that much, the general manager must, upon principle, be held to be the agent of the master, not only to the world at large, but to his inferior officers and servants; and his neglects in this regard will be the neglects of the common employer even as to them. If he employs or retains incompetent subordinates, the master will be responsible for such

an act of negligence on the part of his general manager, even to a person engaged in the same service with the general manager. Having settled the principles by which I proceed, I find but little difficulty in coming to a decision in this case satisfactory to my own mind. The death of the slave, Isaac, and the injury done to the other slaves of Bolling, who were hired on the boat, resulted from the negligence of the engineer, by which the boilers-were exploded. The testimony shows a case of habitual and gross negligence' on the part of the engineer.

The captain of the boat had been notified of the misconduct of the engineer, for some time previous to the disaster, and did not dismiss him, as he had power to do, and as it was his duty to do. For this act of negligence on the part of the captain, according to the principles before laid down, the owner is responsible. For that duty he was the agent of the owner, as well to his subordinate officers and agents, as to the world at large: and notice to him, under such circumstances, was notice.to the owner, of the incompetency of the engineer.

It was not a casual or accidental act of negligence that produced the injury, but

an act of habitual neglect, for which neglect he ought long before to have been dismissed. These are the reasons for which I concur in affirming the judgment below on the principal question involved.