Hanley v. Grand Trunk Railway Co. , 62 N.H. 274 ( 1882 )

The relation between a corporation and its employes is that of master and servant, and the general rule is that a master is not liable to a servant for an injury received from the negligence of a fellow-servant in the same general employment, the master being in no fault. Fifield v. Railroad,42 N.H. 225, 236; Farwell v. Railroad, 4 Met. 49; Hayes v. Railroad, 3 Cush. 270; Carle v. Canal Railroad Co., 43 Me. 269; Noyes v. Smith,28 Vt. 59; Brown v. Maxwell, 6 Hill 592; Coon v. Railroad, 6 Barb. 231; Ryan v. Railroad, 23 Pa. St. 384; Madison c. Railroad Co. v. Bacon, 6 Ind. 205; Honner v. Railroad, 15 Ill. 550; Murray v. Railroad, 1 M'Mull. 385; Priestley v. Fowler, 3 M. W. 1; Hutchinson v. Railroad, 5 Exch. 343; Wigmore v. Jay, 5 Exch. 354; Skip v. Railroad, 24 E. L. Eq. 396. The master contracts for the use of ordinary care in furnishing suitable machinery, materials, and appliances, and servants reasonably competent and sufficient in number for the service; and the servant, when employed, takes upon himself the apparent risks of the business and those naturally incident to the employment. Assop v. Yates, 2 Hurl. N. 768; Clarke v. Holmes, 7 Hurl. N. 937; Farwell v. Railroad, supra; Gillshannon v. Railroad, 10 Cush. 228; Ladd v. Railroad, 119 Mass. 412. If reasonable care and diligence are exercised in the adoption of suitable machinery and appliances for carrying on the business and in the selection of competent servants, the master is not liable for an injury resulting to an employe from a defect in the machinery or from the negligence or incompetence of a fellow-servant, when he did not know or by reasonable diligence might not have known of the defect or the incompetence of the fellow-servant, and had no opportunity to prevent the injury by repairing the defect or discharging the incompetent servant. Gibson v. Railroad, 46 Mo. 163; Railroad v. Troesch, 68 Ill. 545; Baulec v. Railroad, 59 N.Y. 356; Davis v. Railroad, 20 Mich. 105.

In this case there is no evidence upon which it could properly be found that the car was defective through any want of care on the part of the defendants. If the snow was a defect, it could not he fairly found on the evidence that it was on the car at the time of the injury through any fault of the defendants' servants not co-servants of the plaintiff. Moreover, the defect, if there was one, was apparent. Whatever danger there was encountered by the plaintiff, with full knowledge or abundant notice putting him on his guard. There was no concealed or unknown defect. The height of the snow was apparent, and there is no evidence of anything delusive or deceptive in its appearance, and the plaintiff had full means of knowledge. He saw the snow, and described it in his testimony. There was sufficient light to enable him to see it perfectly. It was not the first rail thrown upon the car that fell upon him, nor was this his first work of the kind. The plaintiff was accustomed to the work. On this occasion he engaged in it in the usual course of business; and to hold that it could be fairly found that the danger into which he went was not apparent, or that he was injured by the fault of any one not a fellow-servant, would be upholding a refinement that would hardly be relied upon if the defendants were not a corporation, and regarding that as sufficient evidence to justify an action which would not be so regarded in a suit between two natural persons.

Judgment for the defendants.

STANLEY, J., did not sit: the others concurred.