When the allowance of a challenge to a juror for cause is
assigned as error, it should appear that it was not peremptory if
peremptory challenges are allowed.
An allowance of a challenge to a juror for cause and the
selection of another competent and unbiased juror in his place
works no prejudice to the other party.
It is not error that the court below, after motion to set aside
a verdict as excessive, ordered that the motion should be granted
unless the plaintiff should at once remit the amount deemed by the
court to be in excess, but in that case the motion should be denied
and judgment entered for the remainder.
An employer is not liable for injuries to his servant caused by
the negligence of a fellow servant in a common employment, but this
exemption does not extend to injuries caused by the carelessness or
neglect of another person in the master's service in an employment
not common to that in which the person injured is engaged, and upon
a subject in regard to which the person injured has a right to look
for care and diligence on the part of the other person as the
representative of the common master.
If no one is appointed by a railway company to look after the
condition of its cars and see that the machinery and appliances
used to move and to stop them are kept in repair and in good
working order, it is liable for the injuries caused thereby. If one
is appointed by it charged with that duty, and the injuries result
from his negligence in its performance, the company is liable. He
is, so far as that duty is concerned, the representative of the
company.
A statute which enacts that
"An employer is not bound to indemnify his employee for losses
suffered by the latter in consequence of the ordinary risks of the
business in which he is employed, nor in consequence of the
negligence of another person employed in the same general
business"
does not apply to losses suffered by an employee in consequence
of the negligence of another person employed by the same employer
in another and not in the same general business.
A statute which provides that "there is no common law in any
case where the law is declared by the codes" does not take from the
court the duty of referring to the common law in order to determine
the meaning of a term used in the codes when they fail to define
it.
The Northern Pacific Railroad Company is a corporation created
under the laws of Congress to construct a railroad and
Page 116 U. S. 643
a telegraph line from Lake Superior to Puget Sound. In 1879, it
had constructed and was operating the road from Duluth, in
Minnesota, to Bismarck, in Dakota. On the 24th of October of that
year, the plaintiff in the court below, the defendant in error
here, was a brakeman in its yard at Bismarck, where its cars were
switched upon different tracks and its trains were made up for the
road. It was his duty, among other things, to set and to loosen the
brakes of the cars whenever necessary and whenever ordered to do so
by the yardmaster. At the time mentioned, he was ordered to stop,
with the brakes, two cars which had been switched upon a track in
the yard. In obedience to this order, he went upon the rear car and
attempted to set the brake attached to it, but the brake was so
badly broken and out of order that it could not be made to work. As
soon as he discovered this, he stepped on the forward car in order
to stop it. The brake on that car was a "step-brake," and in order
to work it, he was obliged to place his foot on the step attached
to the car below the top, and this brought his foot and leg between
the two cars. This brake was also out of order, and while
attempting to set it, his foot being upon the step, the car struck
another car on the track, and was suddenly stopped. The draw bar
and bumper of the rear car had been pulled out, and for want of
them the two cars, when the forward one was suddenly stopped, came
violently together, crushing his leg, so that amputation became
necessary. To recover damages for the injury sustained, he brought
this action against the company, alleging that it was its duty to
provide good and safe cars and machinery and apparatus of a like
character for braking and handling them, and also to make rules and
regulations for switching and handling them in they yard and for
notifying employees of the condition of defective and broken cars
so that they might not be subjected to unnecessary danger, but that
it neglected its duty in these particulars, and thereby, without
his fault, he was injured as stated.
In its answer, the company admitted the allegations as to the
employment of the plaintiff and the injuries he had received, but
set up that it was his duty to know, and that he did know, the
condition of each of the cars, and that he carelessly put his
Page 116 U. S. 644
leg between them when setting the brake of the forward car, and
thus, through his own fault, suffered the injury of which he
complains.
There was a verdict in favor of the plaintiff for $25,000. A
motion for a new trial was made on various grounds; among others,
that the damages were excessive. The court ordered that a new trial
be granted unless he remitted $15,000 of the verdict, and in case
he did so that the motion be denied. He remitted the amount, and
judgment was entered in his favor for the balance, and costs of
suit, which the supreme court of the territory affirmed.
For the reversal of the judgment several errors of the court
below are assigned, but, so far as they are deemed material, they
may be reduced to four: 1, in sustaining a challenge to a juror, 2,
in denying a new trial on condition that the plaintiff should remit
a part of the sum awarded by the verdict, 3, in refusing to dismiss
the suit at the close of the plaintiff's case, 4, in refusing to
charge that the plaintiff should have taken notice of the defects
in the cars, and that he was guilty of such negligence in that
respect as to deprive him of a right to recover.
Page 116 U. S. 646
MR. JUSTICE FIELD delivered the opinion of the Court. After
stating the facts in the language reported above, he continued:
1. As to the challenge to a juror. It appears that one Weaver,
summoned as a juror, testified that he was a lumber dealer and that
the company gave him a place on its right of way for a lumber yard,
without rent, and also that he had heard the accident to the
plaintiff spoken of and explained. It was not shown, however, that
the had any actual bias for or against either party or any belief
or opinion touching the merits of the case. He was nevertheless
challenged, and the allowance of the challenge constitutes the
first error assigned. It does not appear whether the challenge was
for cause or was peremptory. Under the statute of Dakota, each
party is entitled to three peremptory challenges. It is for the
party asserting error to show it; it will not be assumed. But if we
regard the challenge as for cause, its allowance did not prejudice
the company. A competent and unbiased juror was selected and sworn,
and the company had therefore a trial by an impartial jury, which
was all it could demand.
United States v. Cornell, 2 Mason
104;
Heaston v. Cincinnati & Fort Wayne Railroad Co.,
16 Ind. 275, 279;
Atchison, Topeka & Santa Fe Railroad Co.
v. Franklin, 23 Kan. 74;
Carpenter v. Dame, 10 Ind.
130;
Morrison v. Lovejoy, 6 Minn. 349, 350.
2. The exaction, as a condition of refusing a new trial, that
the plaintiff should remit a portion of the amount awarded by the
verdict was a matter within the discretion of the court. It held
that the amount found was excessive, but that no error had been
committed on the trial. In requiring the remission
Page 116 U. S. 647
of what was deemed excessive, it did nothing more than require
the relinquishment of so much of the damages as in its opinion the
jury had improperly awarded. The corrected verdict could therefore
be properly allowed to stand.
Hayden v. Florence Sewing Machine
Co., 54 N.Y. 221, 225;
Doyle v. Dixon, 97 Mass. 208,
213;
Blunt v. Little, 3 Mason 102, 107.
3. The dismissal of the suit at the close of the plaintiff's
case was moved on the ground that the plaintiff had failed to
establish a cause of action, and in support of this position it is
contended that the plaintiff was a fellow servant of the officer or
agent of the company who was charged with the duty of keeping the
cars in order, and therefore could not recover against the company
for injuries suffered by reason of the latter's negligence, and
that this exemption from liability is declared by the statute of
Dakota. The general doctrine as to the exemption of an employer
from liability for injuries to a servant caused by the negligence
of a fellow servant in a common employment is well settled. When
several persons are thus employed, there is necessarily incident to
the service of each the risk that the others may fail in that care
and vigilance which are essential to his safety. In undertaking the
service, he assumes that risk, and, if he should suffer, be cannot
recover from his employer. He is supposed to have taken it into
consideration when he arranged for his compensation. As we said on
a former occasion: "He cannot, in reason, complain if he suffers
from a risk which he has voluntarily assumed, and for the
assumption of which he is paid."
Chicago & Milwaukee
Railroad Co. v. Ross, 112 U. S. 377,
112 U. S.
383.
It is equally well settled, however, that it is the duty of the
employer to select and retain servants who are fitted and competent
for the service and to furnish sufficient and safe materials,
machinery, or other means by which it is to be performed, and to
keep them in repair and order. This duty he cannot delegate to a
servant so as to exempt himself from liability for injuries caused
to another servant by its omission. Indeed, no duty required of him
for the safety and protection of his servants can be transferred so
as to exonerate him from such
Page 116 U. S. 648
liability. The servant does not undertake to incur the risks
arising from the want of sufficient and skillful co-laborers, or
from defective machinery or other instruments with which he is to
work. His contract implies that in regard to these matters, his
employer will make adequate provision that no danger shall ensue to
him. This doctrine has been so frequently asserted by courts of the
highest character that it can hardly be considered as any longer
open to serious question. It was substantially declared in the
recent case of
Hough v. Railway Co., 100 U.
S. 213, where we said that notwithstanding a railroad
corporation may be controlled by competent, watchful, and prudent
directors and care and caution are exercised in the selection of
subordinates at the head of the several branches of its service,
its obligation still remains to provide and maintain in a suitable
condition the machinery and apparatus to be used by its employees,
and that it
"cannot, in respect to such matters, interpose between it and
the servant, who has been injured without fault on his part, the
personal responsibility of an agent, who, in exercising the
master's authority, has violated the duty he owes as well to the
servant as to the corporation."
In that case, the engine of the railroad, coming in contact with
an animal, was thrown from the track over an embankment, whereby
the whistle fastened to the boiler was forced out, thus permitting
hot water and steam to escape which so scalded the engineer as to
cause his death. The engine was thrown from the track because the
cow-catcher or pilot was defective, and the whistle was forced out
because it was insecurely fastened. These defects were owing to the
negligence of the company's master mechanic and the foreman of the
roundhouse, to whom was committed the exclusive management of the
motive power of the company, with control over all the engineers
employed. In an action by the widow and child of the deceased, the
company set up as a defense that if the alleged defects existed,
which it denied, they were owing to the negligence of those
servants, for which the company was not liable. The Court held that
the company was not thereby exonerated from liability.
In
Flike v. Boston & Albany Railroad Co., 53 N.Y.
549, it
Page 116 U. S. 649
was held by the Court of Appeals of New York that a corporation
is liable to an employee for negligence or want or proper care in
respect of such acts and duties as it was required to perform as
master or principal, without regard to the rank or title of the
agent entrusted with their performance, and that as to such acts,
the agent occupies the place of the corporation, and that the
latter is deemed to be present, and consequently liable for the
manner in which they are performed. There, it appeared that the
accident which caused the injury complained of was in consequence
of an insufficient of brakemen on the cars of the company. The fact
that the company had an agent whose business it was to make up the
trains, to hire and station the brakemen, and to prepare and
dispatch the trains did not relieve it from liability.
In
Corcoran v. Holbrook, 59 N.Y. 517, it appeared that
the defendants operated a cotton mill to the management of which
they gave no personal attention, but entrusted it to a general
agent with full power. In the mill was an elevator used by the
employees which became out of repair and unsafe, of which the agent
had notice. He neglected to have it repaired, and an employee was
injured by its fall. The court held that the defendants were
liable; that the general agent was not a mere fellow servant, but
occupied the place of the owners, and that they could not, by
delegating their authority to another and absenting themselves,
escape from liability for the nonperformance of duties they owed to
their employees. "As to acts," said the court,
"which a master or principal is bound as such to perform toward
his employees, if he delegates the performance of them to an agent,
the agent occupies the place of the master, and the latter is
deemed present and liable for the manner in which they are
performed."
In
Fuller v. Jewett, 80 N.Y. 46, an engineer on the
Erie Railway was killed by the explosion of the boiler of a
locomotive caused by its defective condition. To the action brought
by his administratrix it was contended that the negligence of the
mechanics in not keeping the boiler in a safe condition was the
negligence of his co-employees in the service of the company, for
which it was not responsible. But the court
Page 116 U. S. 650
affirmed the principle of the decisions already cited, and held
that an act or duty which the master, as such, is bound to perform
for the safety and protection of his employees cannot be delegated
so as to relieve him from liability to a servant injured by its
omission or its negligent performance, whether the nonfeasance or
misfeasance be that of a superior or inferior officer, agent, or
servant to whom the doing of the act or the performance of the duty
has been committed. "In either case, in respect to such act or
duty," said the court, "the servant who undertakes or omits to
perform it is the representative of the master and not a mere
co-servant with the one who sustains the injury."
Pantzar v.
Tilly Foster Iron Mining Co., 99 N.Y. 368, decided the present
year by that court, is to the same effect.
In
Ford v. Fitchburg R. Co., 110 Mass. 241, which was a
similar action for injuries caused by the explosion of an engine
boiler out of repair, the same defense was made, that the want of
repair was owing to the negligence of a fellow servant in the
department of repairs, but the court said that
"the agents who are charged with the duty of supplying safe
machinery are not, in the true sense of the rule relied on, to be
regarded as fellow servants of those who are engaged in operating
it. They are charged with a master's duty to his servant. They are
employed in distinct and independent departments of service, and
there is no difficulty in distinguishing them, even when the same
person renders service by turns in each, as the convenience of the
employer may require. In one, the master cannot escape the
consequence of the agent's negligence; if the servant is injured in
the other, he may."
And the court held that there was no error in a refusal to
instruct the jury that the corporation was not liable unless the
plaintiff proved that the president, directors, or superintendent
either personally knew or by the exercise of reasonable care in the
performance of their duties might have known of the existence of
the defect in the engine which caused the explosion, or that the
persons employed to have charge of the engine and keep it in repair
were incompetent, observing that
"the question was not whether the officers named knew or might
have known of the defect or of the incompetency of those who had
charge of the repairs, but
Page 116 U. S. 651
whether the corporation in any part of its organization, by any
of its agents, or for want of agents, failed to exercise due care
to prevent injury to the plaintiff from defects in the instrument
furnished for his use."
In
Shanny v. Androscoggin Mills, 66 Me. 420, the action
was by an employee of the defendants for injuries to her hand
caused by insufficient and defective covering to machinery and
gearing, which she was employed to clean. On the trial, the
defendants contended, among other things, that if the defective
covering was owing to the negligence of a fellow servant whose duty
it was to repair it, they were not liable. But the court said
"that the person whose duty it was to keep the machinery in
order, so far as that duty goes, was not, in any legal sense, the
fellow servant of the plaintiff. To provide machinery and keep it
in repair and to use it for the purpose for which it was intended
are very distinct matters. They are not employments in the same
common business, tending to the same common result. The one can
properly be said to begin only when the other ends. The two persons
may indeed work under the same master and receive their pay from
the same source, but this is not sufficient. They must be at the
time engaged in a common purpose or employed in the same general
business. We do not now refer to the different grades of services,
about which there is considerable conflict of opinion, but of the
different employment. In the repair of the machinery, the servant
represented the master in the performance of his part of the
contract, and therefore, in the language of the instructions, his
negligence in that respect is the 'omission of the master or
employer in contemplation of law.'"
Numerous decisions from other courts to the same purport might
be added.
Bessex v. Chicago & Northwestern Railway
Co., 45 Wis. 477, 481;
Wedgwood v. Chicago &
Northwestern Railway Co., 41 Wis. 478;
Toledo, Peoria
& Warsaw Railroad Co. v. Conroy, 68 Ill. 561;
Drymala
v. Thompson, 26 Minn. 40. The doctrine laid down in them is
specially applicable when the employer is a common carrier of
passengers and property and steam is the motive power, inasmuch as
any
Page 116 U. S. 652
defect in the machinery may be followed by serious disasters.
The same considerations which render him responsible in such cases
for the safe transportation of passengers and property should also
impose upon him an equal responsibility to his employees so far as
their safety depends upon the character and condition of the
machinery and appliances used in the transportation. Where the
employee is not guilty of contributory negligence, no
irresponsibility should be admitted for an injury to him caused by
the defective condition of the machinery and instruments with which
he is required to work, except it could not have been known nor
guarded against by proper care and vigilance on the part of his
employer.
According to the authorities cited, there can be no question as
to the liability of the railroad company to the plaintiff for the
injuries he sustained. If no one was appointed by the company to
look after the condition of the cars and see that the machinery and
appliances used to move and to stop them were kept in repair and in
good working order, its liability for the injuries would not be the
subject of contention. Its negligence in that case would have been
in the highest degree culpable. If, however, one was appointed by
it charged with that duty and the injuries resulted from his
negligence in its performance, the company is liable. He was, so
far as that duty is concerned, the representative of the company.
His negligence was its negligence, and imposed a liability upon it
unless, as contended, it was relieved therefrom by the statute of
Dakota.
Section 1130 of the Civil Code of that territory is in these
words:
"CO-EMPLOYEES. An employer is not bound to indemnify his
employee for losses suffered by the latter in consequence of the
ordinary risks of the business in which he is employed, nor in
consequence of the negligence of another person employed by the
same employer in the same general business, unless he has neglected
to use ordinary care in the selection of the culpable
employee."
The next section, 1131, is as follows:
"EMPLOYER'S NEGLIGENCE -- An employer must, in all cases,
Page 116 U. S. 653
indemnify his employee for losses caused by the former's want of
ordinary care."
We do not consider that the first of these sections changes the
law previously existing as to the exemption of an employer from
responsibility for injuries committed by a servant to a fellow
servant in the same general business, or identifies the business of
providing safe machinery and keeping it in repair with the business
of handling and moving it. The two kinds of business are as
distinct as the making and repairing of a carriage is from the
running of it. They are, as stated in the case decided by the
supreme court from which we have cited above, separate and
independent departments of service, though the same person may, by
turns, render service in each. The person engaged in the former
represents the employer, and in that business is not a fellow
servant with one engaged in the latter. The words "same general
business" in the section have reference to the general business of
the department of service in which the employee is engaged, and do
not embrace business of every kind which may have some relation to
the affairs of the employer, or even be necessary for their
successful management. If any other construction were adopted,
there would, under the section, be no such thing as separate
departments of service in the business of railroad companies, for
whatever would tend to aid in the transportation of persons and
property would come under the designation of its general business.
The same section is in the Civil Code of California, and our
construction of it accords with that of the supreme court of the
state. In
Beeson v. Green Mountain Gold Mining Co., 57
Cal. 20, the defendant, a corporation engaged in quartz mining,
appointed a superintendent to supervise and manage its mining
operations, with authority to employ and discharge laborers at the
mine. One of the laborers thus engaged lost his life in a fire,
which originated from a defective pipe put up by a tinner under the
supervision of the superintendent and connected with the engine
used to raise ore and take water from the mine. It did not appear
that the deceased knew or had reason to know of the defect. In an
action by his widow for damages in consequence of his death, it
was
Page 116 U. S. 654
held, against the contention of the company, that the
superintendent was not a fellow employee of the deceased in the
sense intended by the section; that for the purposes of managing
the business and determining what machinery should be used and how
placed, he was the representative of the company, and that the
deceased was not bound to know whether a defect existed in the
machinery and appliances not within his view, but had a right to
rely upon the implied engagement of the company that the pipe was
properly placed and constructed. It was also held that the tinner,
in performing his share of the work, was not a fellow servant of
the deceased; that as his work was done under the direction and
supervision of the superintendent, it was the same as if done by
the superintendent in person.
We do not perceive that the provision of the sixth section of
the Civil Code of Dakota, that in the territory "there is no common
law in any case where the law is declared by the Codes," at all
affects the question before us. There cannot be two rules of law on
the same subject contradicting each other; therefore, where the
Code declares the law, there can be no occasion to look further;
but where the Code is silent, the common law prevails. What
constitutes the "same general business" is not defined by the Code,
but may be explained by adjudged cases. The declaration by the Code
of a general rule, which is conformable to existing law, does not
prevent the courts from looking to those cases for explanation any
more than it prevents them from looking into the dictionary for the
meaning of words.
Section 1131 of the Dakota Code expresses the general law, as we
have stated it to be, that an employer is responsible for injuries
to his employees caused by his own want of ordinary care. His
selection of defective machinery, which is to be moved by steam
power, is of itself evidence of a want of ordinary care, and
allowing it to remain out of repair when its condition is brought
to his notice, or by proper inspection might be known, is culpable
negligence. Here, the cars had been defective for years. The brakes
were all worn out, and their condition had been called to the
attention of the yardmaster,
Page 116 U. S. 655
who had control of them while in the yard, and might have been
ascertained, upon proper inspection, by the officer or agent of the
company charged with the duty of keeping them in repair, yet
nothing was done to repair either brakes or cars. Under these
circumstances, it cannot be said that the company exercised,
through its officer or agent charged with that duty, ordinary care
to keep the cars and brakes in good condition, and therefore, under
the provisions of this section, it is bound to indemnify the
plaintiff.
4. As to the alleged negligence of the plaintiff, only a few
words need be said. Of course he was bound to exercise care to
avoid injuries to himself. If he had known, or might have known by
ordinary attention, the condition of the brakes and cars when he
mounted the cars and thus exposed himself to danger -- in other
words, if he did not use his senses as men generally use theirs to
keep from harm -- he cannot complain of the injury which he
suffered. He had been employed in the yard only one day before the
accident occurred, and it does not appear that the defects in the
brakes or cars were brought to his notice, though there was some
evidence that statements as to their defective condition were made
in his presence and hearing. He testifies that he saw no defect in
either of them, and was not apprised of any. The defect in the
brakes was not patent to the eye; it could be known only from an
attempt to set them or by information from others. He had a right,
therefore, to assume, without such information, that they were in a
condition in which it was safe to mount the cars to set them when
ordered by the yardmaster.
It was contended in the court below that the plaintiff might
have inferred from the manner in which the cars were attached that
there was a defect in them. The manner of their attachment showed
nothing as to the condition of the brakes, and the court left the
question of his negligence to the jury. It instructed them that if,
from the unusual appearance of the car upon which he was engaged,
as, for instance, its being attached to the next car by chains, or
if from any statements of the yardmaster or car repairer he had
reason to believe that the car in question was defective, or had
been broken, he was
Page 116 U. S. 656
bound to take care not to expose his person to injuries which a
broken and defective car might cause, and further that if they
found from the evidence that the company was guilty of negligence
in not providing proper and safe machinery and appliances, in
consequence of which neglect the injury was received, still, if he
failed to exercise that prudence, care, and caution which prudent
men under similar circumstances would ordinarily exercise, and he
thereby contributed approximately to injury, he was not entitled to
recover.
The verdict of the jury, upon these instructions and others of
the same general purport, negatived any imputation of negligence on
his part. We see, therefore, no error on the trial, and the
judgment below must be
Affirmed.
MR. JUSTICE HARLAN, concurring.
I concur in the opinion just delivered by MR. JUSTICE FIELD, and
will add a few suggestions in support of the conclusion reached by
the Court. It is contended on behalf of the railroad company that
if it used ordinary care in the selection of the employee to whose
negligence the plaintiff's injuries are attributed, it is protected
from liability by § 1130 of the Dakota Code, even if such culpable
employee had superior or controlling authority over the injured
employee and even if the injuries were caused by the defective
condition of the appliances and machinery provided by the company
through its agents for the use of the employee so injured, for, it
is argued, the words "the same general business" in that section
embrace every branch or department of the common employer's
business, and no distinction is therein made between employees in
respect of grades or the nature of the particular service rendered
by them. Even if that were admitted to be a proper construction of
§ 1130, standing by itself, the inquiry still arises as to the
object of § 1131, which declares that the employer "must, in all
cases, indemnify his employee for losses caused by the former's
want of ordinary care." The latter section was plainly intended to
cover cases not provided for in the preceding section.
Page 116 U. S. 657
If one section applies to corporations, the other equally
applies to them. The two sections must be construed together, and,
so construed, it is manifest that while the statute establishes the
rule that the employer is not bound to indemnify his employee
"for losses suffered by the latter in consequence of the
ordinary risks of the business in which he is employed, nor in
consequence of the negligence of another person employed by the
same employer in the same general business,"
it also with equal distinctness declares two exceptions to that
rule: 1, where the employer has neglected to use ordinary care in
the selection of the employee whose negligence caused the losses in
question; 2, where the losses were caused by the employer's own
want of ordinary care. The latter exception is as explicitly
declared as is the former, and cannot be ignored or nullified by
construction.
What case is more distinctly within § 1131 than one where a
railroad company fails to appoint some one to provide and maintain
machinery and appliances safe and suitable for use by its
employees, or where its agent or employee, appointed to that duty,
does not exercise ordinary care in its discharge? Such an agent or
employee is of necessity the representative of the corporation, and
his want of ordinary care in respect of such matters is negligence
upon the part of the corporation itself. It cannot in reference to
those matters, whatever it may be permitted to do in reference to
other matters connected with its business, "interpose between it
and the servant who has been injured, without fault on his part,
the personal responsibility of an agent." That is clearly shown in
the opinion of the Court. Between an agent charged with the
performance of the company's duty to provide and maintain safe and
suitable appliances and machinery and the employees who use them,
the relation of fellow servants does not exist. The want of
ordinary care upon his part is, in the language of § 1131 and
according to the weight of judicial authority, a want of ordinary
care upon the part of the corporation itself. This case therefore
comes within that section.
MR. JUSTICE BLATCHFORD, with who concurred MR. JUSTICE
Page 116 U. S. 658
BRADLEY, MR. JUSTICE MATTHEWS, and MR. JUSTICE GRAY,
dissenting.
MR. JUSTICE BRADLEY, MR. JUSTICE MATTHEWS, MR. JUSTICE GRAY, and
myself are unable to concur in the judgment of the Court in this
case.
The Civil Code of Dakota, sections 6 and 2129, provides as
follows:
"SEC. 6. In this territory there is no common law in any case
where the law is declared by the Codes."
"SEC. 2129. The rule of the common law that statutes in
derogation thereof are to be strictly construed has no application
to this Code. This Code establishes the law of this territory
respecting the subjects to which it relates, and its provisions are
to be liberally construed with a view to effect its objects and to
promote justice."
The rules of the common law are therefore not applicable in
Dakota in any case where the statute law is declared in the Civil
Code on the subject, and that statute law is not to be construed
strictly, but liberally with a view to effect its objects and to
promote justice. Now what is the statute law of Dakota on the
subject involved in this case? It is found in sections 1129, 1130,
and 1131 of the Civil Code, as follows:
"SEC. 1129. An employer must indemnify his employee, except as
prescribed in the next section, for all that he necessarily expends
or loses in direct consequence of the discharge of his duties as
such, or of his obedience to the directions of the employer, even
though unlawful, unless the employee at the time of obeying such
directions, believed them to be unlawful."
"SEC. 1130. An employer is not bound to indemnify his employee
for losses suffered by the latter in consequence of the ordinary
risks of the business in which he is employed, nor in consequence
of the negligence of another person employed by the same employer
in the same general business, unless he has neglected to use
ordinary care in the selection of the culpable employee."
"SEC. 1131. An employer must in all cases indemnify his employee
for losses caused by the former's want of ordinary care."
These provisions are very clear. The language used in
section
Page 116 U. S. 659
1130, "another person employed by the same employer in the same
general business," indicates that, in the view of the three
sections of the Code in question, a co-employee is another person
employed with the employee by the same employer in the same general
business. Therefore wherever the word "employee" is used in any one
of the three sections, it means a person who may be such a
co-employee. By § 1129, the railroad company is not bound to
indemnify Herbert except as prescribed in § 1130, for what he
necessarily expended or lost by discharging the duty he did in
reference to the freight cars. What is prescribed in § 1130 is
this: the company is not bound to indemnify Herbert for what he so
lost in consequence of the negligence of his co-employees in the
same general business unless the company neglected ordinary care in
the selection of such co-employees. No want of care in such
selection is alleged, and the action is sought to be maintained,
and the verdict for the plaintiff may have been rendered, not on
the neglect of the corporation itself to provide and maintain
suitable cars, brakes, drawbars, and bumpers, but on the neglect of
inferior employees of the corporation to keep them in repair. This
is clearly shown by the refusal of the court to instruct the jury,
as requested by the defendant, that the plaintiff could not recover
by "reason of any acts of negligence on the part of any other
persons employed by the defendant in the same general business with
the plaintiff," and that "this would include the yardmaster and car
repairer," and by the fact that, on the contrary, it instructed
them that
"the negligence of those entrusted by the corporation with the
power and duty of procuring or keeping in repair such machinery is,
in law, the negligence of the corporation."
It is sought to destroy the application of §§ 1129 and 1130 to
this case by invoking the rule set forth in § 1131, that "an
employer must in all cases indemnify his employee for losses caused
by the former's want of ordinary care," and by saying that in this
case the company did not exercise ordinary care, because the
co-employees of Herbert were guilty of the negligence which caused
his injury. But that is the very
Page 116 U. S. 660
case provided for by § 1130, and the doctrine of the Court comes
to this in Dakota: that even though a railroad corporation, acting
by its board of directors, exercises ordinary care in the selection
of its employees and provides adequate and competent machinery,
outfit, and appliances, and prescribes proper rules and regulations
for their use, and has no knowledge or notice of any defects in
them, and no circumstances exist sufficient to charge it with such
knowledge or notice, it is guilty of want of ordinary care, within
§ 1131, toward an employee who is injured by the negligence of his
co-employees in the same general business by the mere fact of the
happening of such injury through such negligence, although § 1130
distinctly declares that in such a case, the employer shall not be
liable to the injured employee.
It is a rule for the construction of statutory provisions,
especially those embraced in the same statute, that all must be
construed so that all shall have effect, if possible. There is
ample scope for the application of § 1131 by limiting it to cases
not embraced within § 1130. Otherwise, no force is given to §
1130.
The failure to give proper effect to § 1130 is the more marked
because, with one exception, the only authorities cited in the
opinion of the Court to sustain its views are cases decided where
the common law prevails, and not where such statutory provisions as
those in Dakota exist -- provisions which declare that the common
law is abrogated as to the subject matter of the controversy in
this suit.
Sections 4, 1969, 1970, and 1971 of the Civil Code of California
are the same, respectively, as sections 2129, 1129, 1130, and 1131
of the Civil Code of Dakota. But there is nothing in the case of
Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20,
cited in the opinion of the majority of the Court, which sanctions
the view that the yardmaster or the car repairer in the present
case was not a person employed "in the same general business" with
Herbert within the meaning of such a statute.
Considering the case to be governed by the local statute, we
express no opinion upon the question whether the instructions given
to the jury accorded with the rules of the common law.