Ferguson v. Cady-McFarland Gravel Co.

REYNOLDS, J.

OPINION

The questions presented for determination in this case have been, we think, decided by the Supreme Court in favor of the plaintiff in passing of defendant’s exception of no right or cause of action.

That court decided that plaintiff’s petition did express a cause of action, and the evidence in the case we think establishes the verity of fell the allegations of the petition, except, perhaps, the allegation that Ferguson, the deceased, and Teddor, who slew him, were fellow employees. But the fact, if it be a fact, that they were not fellow employees, is not, we think, of any importance. They both were working for the defendant and their work threw them together, Ferguson in repairing the track over which Teddor operated jhis locomotive.

Besides this, the Workmen’s Compensation Law makes the employer liable for an injury to an employee through the tort of a third person; and much more so is the employer liable, when the injury occurs through the tort of a superior upon a subordinate employee.

Defendant’s counsel insists with great force that the evidence of Teddor who killed Ferguson, and his foreman, Rudolph Adams, shows that the homicide was the result of an altercation between Teddor and Ferguson in which Ferguson was the aggressor. We are much impressed with counsel’s contention, but are not unmindful of the fact that Plato is said to have been able to make the “worse appear the better reason”.

Under all the evidence found in the record we are convinced that Ferguson was killed by Teddor while he was at work in a stooping position without knowing that he was being attacked by Teddor.

For the above reasons the judgment of the lower court is affirmed.