Railroad Company v. Fort
84 U.S. 553

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U.S. Supreme Court

Railroad Company v. Fort, 84 U.S. 17 Wall. 553 553 (1873)

Railroad Company v. Fort

84 U.S. (17 Wall.) 553

Syllabus

F., a boy of tender years, had been engaged, by a company owning it, in a machine shop, as a workman or helper under the superintendence of C., and required to obey his orders. After being employed for a few months chiefly in receiving and putting away mouldings as they came from a moulding machine, the boy, by the order of C., ascended a ladder to a great height from the floor, among rapidly revolving and dangerous machinery, for the purpose of adjusting a belt by which a portion of the machinery was moved, and while engaged in the endeavor to execute the order had his arm torn from his body. The jury, by a special verdict,

Page 84 U. S. 554

found that the order was not within the scope of the boy's duty and employment, but was within that of C.; that the order was not a reasonable one; that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it. Held that the company was liable in damages for the injuries, and that the rule that the master is not liable to one of his servants for injuries resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury -- whether a true rule or not -- had no application to the case.

Fort brought a suit in the court below to recover damages for an injury to his son, aged sixteen years, resulting in the loss of an arm, while in the employment of the Union Pacific Railroad Company. The boy was employed in the machine shop of the company as a workman or helper, under the superintendence and control of one Collett, and had been chiefly engaged in receiving and putting away mouldings as they came from a moulding machine. After the service had been continued for a few months, the boy, by the order of Collett, ascended a ladder, resting on a shaft, to a great height from the floor, among dangerous machinery, revolving at the rate of 175 to 200 revolutions per minute, for the purpose of adjusting a belt by which a portion of the machinery was moved, and which had got out of place. While engaged in the endeavor to execute the order, his arm was caught in the rapidly revolving machinery and torn from his body. The jury, by a special verdict, found that he had been engaged to serve under Collett as a workman or helper, and was required to obey his orders; that the order by Collett to the boy (in carrying out which he lost his arm) was not within the scope of his duty and employment, but was within that of Collett's; that the order was not a reasonable one; that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it.

The circuit judge (Dillon, J.), in charging the jury, after conceding, in accordance with requests of the railroad company, that it was a rule settled, at least by precedent, that

Page 84 U. S. 555

a master is not liable to one of his servants for injuries resulting from the carelessness of a fellow servant, said:

"In deciding this case, you should determine the nature of the employment on which the plaintiff engaged that his son should serve. If you find that his contract of service or the duties which he engaged to perform were such that it was within the contract or within the scope of those duties that the son should assist in the repair of the machinery in question, and that the son when injured was in the discharge of a duty or service covered by the contract of employment, then the company is not liable for the negligence of Collett (if he was negligent) with respect to ordering the son to ascend the ladder and hold the belt away from the shaft. [But I draw this distinction; if the work which the son was ordered by Collett to do was not within the contract of service, was not one of the duties which fell within the contract of employment, but was outside of it, then Collett, in ordering the service in question (if he was in the scope and course of his duties and power at the time) must, as to this act, be taken to represent the company (which is presumed to be constructively present), and if that act was wrongful and negligent, as hereinafter defined, the company, his employer, would be liable for the damages caused by such negligent and wrongful act; and the principle, that the master is not liable for the neglect of a co-employee in the same service has no application, or no just application to such a case, for in such a case they are not, in my judgment, in any proper sense 'fellow servants in the same common service.']"

To the part of the instructions included in brackets, the defendants excepted, and the jury having found for the plaintiff, and judgment being entered accordingly, the case was now here on the exception.

Page 84 U. S. 557

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