Union Pacific Railroad Company v. Fort
ERROR to the Circuit Court for the District of Nebraska.
Fort brought a suit in the court below to recover damages for an injury to his son, aged sixteen years, resulting in the loss of an arm, while in the employment of the Union Pacific Railroad Company. The boy was employed in the machine shop of the company as a workman or helper, under the superintendence and control of one Collett, and had been chiefly engaged in receiving and putting away mouldings as they came from a moulding machine. After the service had been continued for a few months the boy, by the order of Collett, ascended a ladder, resting on a shaft, to a great height from the floor, among dangerous machinery, revolving at the rate of 175 to 200 revolutions per minute, for the purpose of adjusting a belt by which a portion of the machinery was moved, and which had got out of place. While engaged in the endeavor to execute the order his arm was caught in the rapidly revolving machinery and torn from his body. The jury, by a special verdict, found that he had been engaged to serve under Collett as a workman or helper, and was required to obey his orders; that the order by Collett to the boy (in carrying out which he lost his arm) was not within the scope of his duty and employment, but was within that of Collett's; that the order was not a reasonable one; that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it.
The circuit judge (DILLON, J.), in charging the jury, after conceding, in accordance with requests of the railroad company, that it was a rule settled, at least by precedent, that a master is not liable to one of his servants for injuries resulting from the carelessness of a fellow-servant, said:
'In deciding this case you should determine the nature of the employment on which the plaintiff engaged that his son should serve. If you find that his contract of service or the duties which he engaged to perform were such that it was within the contract or within the scope of those duties that the son should assist in the repair of the machinery in question, and that the son when injured was in the discharge of a duty or service covered by the contract of employment, then the company is not liable for the negligence of Collett (if he was negligent) with respect to ordering the son to ascend the ladder and hold the belt away from the shaft. [But I draw this distinction; if the work which the son was ordered by Collett to do, was not within the contract of service, was not one of the duties which fell within the contract of employment, but was outside of it, then Collett, in ordering the service in question (if he was in the scope and course of his duties and power at the time) must, as to this act, be taken to represent the company (which is presumed to be constructively present); and if that act was wrongful and negligent, as hereinafter defined, the company, his employer, would be liable for the damages caused by such negligent and wrongful act; and the principle, that the master is not liable for the neglect of a co-employ e in the same service, has no application, or no just application to such a case; for in such a case they are not, in my judgment, in any proper sense 'fellow-servants in the same common service.']'
To the part of the instructions included in brackets, the defendants excepted; and the jury having found for the plaintiff, and judgment being entered accordingly, the case was now here on the exception.
Mr. C. P. James (a brief of Mr. A. J. Poppleton being filed), for the plaintiff in error:
The rule is, in the absence of statutory enactment, settled both in England and in this country, that, with certain exceptions which it was not pretended applied to this case, the master is not liable to his servant for injuries accruing to him by reason of the negligence of a fellow-servant engaged in a common employment.
The court, in instructing the jury, not denying the rule to be settled as above stated, sought to incorporate into it an exception, which is believed to be without any precedent whatever, and in conflict with certain established principles regulating the relation in question.
If the service during which the accident happened was without the scope of the boy's duty and employment, then the boy, when directed by Collett, was at liberty to refuse to obey. In obeying he was in the position of a mere volunteer; in the position of a bystander who should assist at the request of the company's servant. Now a volunteer, assisting at the request of the master's servant, assumes the character of a fellow-servant, and the master is not liable for injury arising from negligence of fellow-servants.  It makes no difference that plaintiff's son was a minor, sixteen years of age. 
It was error to instruct the jury that if the work which the son was ordered by Collett to do, was not within the contract of service, but was outside of it, then Collett, in ordering the service in question (if he was within the scope and course of his duties and powers at the time) must, as to this act, be taken to represent the company (which is presumed to be constructively present).
Collett was clothed with no discretion in hiring, discharging, or assigning to duty. He was a mere superintendent of a particular kind of work and machinery, hired and assigned to his duty as the boy was. He could not, therefore, in any sense, be said to represent the company as constructively present. The case of Murphy v. Smith  decides the question. The defendant there was the proprietor of a match manufactory. One Simlack was superintendent or manager. Under him was Debor, a workman who, in Simlack's absence, managed the establishment. The plaintiff, one Murphy, a boy of tender years, had been hired by Simlack, and was set to stir a compound-liable to explosion when not skilfully done-with a stick, and in the presence of Debor, whose duty it was to mix the compound, which exploded.
The court submitted to the jury whether the accident was caused by the negligence of Debor, and whether he was at the time acting as manager of the establishment. The jury answered both questions in the affirmative. The court, in its opinion, says, 'that the accident was the result of Debor's negligence, and that he is not shown to have filled any other position in relation to the plaintiff than that of a fellow-workman.'
Messrs. J. I. Redick and Clinton Briggs, contra.
Mr. Justice DAVIS delivered the opinion of the court.
^1 Degg v. Midland Railway Co., 40 English Law and Equity Reports, 376.
^2 King v. Boston and Worcester Railroad Co., 9 Cushing, 113.
^3 19 Common Bench, New Series, 361.