Page:Federal Reporter, 1st Series, Volume 3.djvu/362

m'maHON ». HENNINe. 858 �Ordinary care clearly requires, of persons engaged in opera- ting railroads, that they shall supply to their servants reason- ably safe and convenient aparatus and machinery for use in the performance of their perilous dutiës. But it is ako found that the negligence of Bowles, the yard master, and a co-ea- ploye of plaintiff, contributed to the injùry, and it is insisted that it follows that plaintiff cannot recover unless he is within the provisions of the statute above quoted, �This presenta the question whether, upon the facts found by the jury, the defendant is liable independently of the stat- ute, and upon the principles of the common law. The rule of the common law is that a master is not liable to his servant for the negligence of a fellow servant, and it was to abrogate this rule, in the state of Kansas, that the statute was enacted. But the common-law rule has never, to my knowledge, been carried so far as to permit the master to exempt himself from the consequence of his own personal negligence by showing that one of his servants (not the party injured) has been like- wise negligent. In the present case the master was negligent, while the plaintiff, the injured party, was not negligent. �This makes eut a case at common law, notwithstanding the negligence of Bowles, the fellow servant. The plaintiff recovers upon the ground, of the negligence of the defendant, which is, of itself, a gOod and suflScient ground. The doc- trine of contributory negligence has no application to suob a case. That doctrine applies only to cases of negligence ou the part of the person injured. �The trùe doctrine of the common law is that the master is liable to his servants, as much as to any one else, for the con- sequence of his own negligence; and it is no defence for him' to ehow that the negligence of a fellow servant (for which he was not responsible) also contributed to bringing about the injury. Shearman & Eedfield on Negligence, § 89; Fifteld V. Northern R. Co. 42 N. H. 225; Hough v. Railway Co. 100 U. S. 213 ; Cayzer v. Taylor, 10 Gray, 274; Paulmier v. Erie R. Co. 6 Vroom, (N. J.) 151, 157. �In Cayzer v. Taylor the supreme court of Massachusetts state the rule as follows : "But we are not prepared to say that if one ����