Moody v. Hamilton Manufacturing Co. , 159 Mass. 70 ( 1893 )

Lathrop, J.

There is no evidence in this case of any negligence on the part of the defendant in respect to its selection of a competent overseer and competent servants. So far as the evidence shows negligence on the part of any one it is on the part of one Garner, who was the defendant’s yard-master, and who exercised authority over the plaintiff, who was a yard man.

While there is a conflict of authority in this country on the subject, the rule is well established in this Commonwealth that the fact that one servant has control over another is immaterial, and that a master is not responsible, at common law, for the negligence of a superior servant, even in giving orders,, whereby. injury is sustained by an inferior servant.

In Rogers v. Ludlow Manuf. Co. 144 Mass. 198, 203, it is said by Mr. Justice Field: “ It is settled in this Commonwealth that all servants employed by the same master in a common service are fellow servants, whatever may be their grade or rank.”

The following cases illustrate the rule that a master is not liable to an inferior servant for the negligent act of a superior servant. Hodgkins v. Eastern Railroad, 119 Mass. 419, a case of a brakeman and a station agent. Walker v. Boston & Maine Railroad, 128 Mass. 8, a case of a laborer and road-master. The same rule applies where the superior servant is the foreman of a contractor, and the inferior servant a laborer. Summersell v. Fish, 117 Mass. 312. O'Connor v. Roberts, 120 Mass. 227, 228. McKinnon v. Norcross, 148 Mass. 533. Or the superintendent. Zeigler v. Day, 123 Mass. 152. Floyd v. Sugden, 134 Mass. 563.

A negligent order falls within the same rule, whether given to the servant injured or to another servant whose act in obedience to the order causes the injury.

Thus in Albro v. Agawam Canal Co. 6 Cush. 75, a corporation was held not to be liable to a spinner in its employ by the negligent order to a third person of its superintendent, who had the general supervision and charge of its establishment.

In Benson v. Goodwin, 147 Mass. 237, the owners of a vessel were held not to be liable for a negligent order given by the mate to one sailor, whereby another sailor was injured.

In Duffy v. Upton, 113 Mass. 544, workmen were raising a piece of timber by a derrick, when, the timber meeting with an unlocked for check, the foreman cried out, “ Give another hoist and take it up.” They did so, the derrick broke, and one of the workmen was injured. The employer was held not to be liable.

In Flynn v. Salem, 134 Mass. 351, the plaintiff, a laborer, was employed by the defendant to assist in digging a trench. He was injured by the caving in of the sides of the trench. The declaration alleged as the act of negligence, that the superintendent of the work directed the plaintiff to dig in the trench when it was dangerous to do so, and when the superintendent knew that it was dangerous. A demurrer to the declaration was sustained, on the ground that the only negligence alleged was that of a fellow servant with the plaintiff.

There is nothing in the case of Patnode v. Warren Cotton Mills, 157 Mass. 283, which conflicts with this well settled doctrine, or which was intended by the court to countenance the view which prevails in some jurisdictions, that a superior servant is a vice principal or an alter ego. The plaintiff in Patnode v. Warren Cotton Mills was a boy of fourteen, who was set to work on a dangerous machine by one McKeon, without receiving proper instructions. There was a conflict of evidence on the question whether McKeon had authority to direct the plaintiff to work on the machine, and whether the plaintiff was' not a volunteer. The remarks of the court are directed to this question.

The question of the effect of a negligent order given by a superior servant to an inferior servant upon the liability of the master was not argued by counsel in that case, nor considered by the court.

Exceptions overruled.