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
MR. JUSTICE DAVIS delivered the opinion of the Court.
It was assumed on behalf of the plaintiff in error on the
argument of this cause 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 this proposition, as stated, be true or
not, we do not propose to consider, because, if true, it has no
application to this case.
It is apparent from the findings in the present suit, if the
rule of the master's exemption from liability for the negligent
conduct of a co-employee in the same service be as broad as is
contended for by the plaintiff in error, that it does not apply to
such a case as this. This rule proceeds on the theory that the
employee, in entering the service of the principal, is presumed to
take upon himself the risks incident to the undertaking, among
which are to be counted the negligence of fellow servants in the
same employment, and that considerations of public policy require
the enforcement of the rule. But this presumption cannot arise
where the risk is not within the contract of service, and the
servant had no reason to believe he would have to encounter it.
If
Page 84 U. S. 558
it were otherwise, principals would be released from all
obligations to make reparation to an employee in a subordinate
position for any injury caused by the wrongful conduct of the
person placed over him, whether they were fellow servants in the
same common service or not. Such a doctrine would be subversive of
all just ideas of the obligations arising out of the contract of
service, and withdraw all protection from the subordinate employees
of railroad corporations. These corporations, instead of being
required to conduct their business so as not to endanger life,
would, so far as this class of persons were concerned, be relieved
of all pecuniary responsibility in case they failed to do it. A
doctrine that leads to such results is unsupported by reason and
cannot receive our sanction.
The injury in this case did not occur while the boy was doing
what his father engaged he should do. On the contrary, he was at
the time employed in a service outside the contract and wholly
disconnected with it. To work as a helper at a moulding machine, or
a common workhand on the floor of the shop is a very different
thing from ascending a ladder resting on a shaft, to adjust
displaced machinery, when the shaft was revolving at the rate of
175 to 200 revolutions per minute. The father had the right to
presume when he made the contract of service that the company would
not expose his son to such a peril. Indeed it is not possible to
conceive that the contract would have been made at all if the
father had supposed that his son would have been ordered to do so
hazardous a thing. If the order had been given to a person of
mature years, who had not engaged to do such work, although
enjoined to obey the directions of his superior, it might with some
plausibility be argued that he should have disobeyed it, as he must
have known that its execution was attended with danger. Or, at any
rate, if he chose to obey, that he took upon himself the risks
incident to the service. But this boy occupied a very different
position. How could he be expected to know the peril of the
undertaking? He was a mere youth, without experience, and not
familiar with machinery. Not being
Page 84 U. S. 559
able to judge for himself, he had a right to rely on the
judgment of Collett, and doubtless entered upon the execution of
the order without apprehension of danger. Be this as it may, it was
a wrongful act on the part of Collett to order a boy of his age and
inexperience to do a thing which, in its very nature, was perilous
and which any man of ordinary sagacity would know to be so. Indeed,
it is very difficult to reconcile the conduct of Collett with that
of a prudent man, having proper regard to the responsibilities of
his own position and the rights of others. It is charitable to
suppose that he did not appreciate the danger and acted without due
deliberation and caution. For the consequences of this hasty action
the company are liable, either upon the maxim of
respondeat
superior or upon the obligations arising out of the contract
of service. The order of Collett was their order. They cannot
escape responsibility on the plea that he should not have given it.
Having entrusted to him the care and management of the machinery,
and in so doing made it his rightful duty to adjust it when
displaced, and having placed the boy under him with directions to
obey him, they must pay the penalty for the tortious act he
committed in the course of the employment. If they are not insurers
of the lives and limbs of their employees, they do impliedly engage
that they will not expose them to the hazard of losing their lives
or suffering great bodily harm when it is neither reasonable nor
necessary to do so. The very able judge who tried the case
instructed the jury on the point at issue in conformity with these
views, and we see no error in the record.
Judgment affirmed.
Dissenting, MR. JUSTICE BRADLEY.
[See Packet Company v. McCue, supra, p.
84 U. S. 508]
