Instances of who are and who are not "fellow-servants."

В§ 272. Evolution of the rule.

The earliest case suggesting the fellow-servant rule is that

of Priestley v. Foivler^ decided in 1837 in the English Court

of Exchequer, but the question was not necessarily involved

In the decision of that case. The earliest actual decision was

in the case of Murray v. South Carolina Railroad Company^

handed down by the Court of Errors of South Carolina in

1841. The leading American case is that of Farwell V. Boston

and Worcester Railroad Company^ decided by the Supreme

Judicial Court of Massachusetts in 1842 in an able opinion by

Chief-Justice Shaw, and followed in the other jurisdictions.^

to take upon himself to bear all ordinary risks wliicli are incident to

his employment, and, amongst otliers, the possibility of injury happening

to him from the negligent acts of his fellow-servants or fellow-workmen."

Archibald, J., in Lovell v. Howell, 1 C. P. D. Kil.

1 Farwell i\ Boston & Worcester R., 4 Met. (Mass.) 40.

2 3 M. & W. 1. Followed in Hutchinson v. York, 5 Exch. 313; Tar-

rant В». Webb, 18 C. B. 797; Morgan r. Vale of Neath R., L. R. 1 Q. B.

149, and subsequent cases. Adopted for Scotland, Bartonshill Coal Co.

V. Reid, 3 Macq. H. L. 266.

8 1 McMull. Law, 385.

4 4 Met. 49.

6 Brown v. Maxwell (1S44), 6 Hill (X. Y.), .592 ; Coon v. Syracuse,

&c. R. (1851), 6 Barb. 231, affirmed, 5 N. Y. 492; Ryan v. Cumberland

FOR TOUTS TO SERVANT. 333

In the Murray Case the action was by a fireman for injuries

sustained by the negligence of the engineer, and it was held

by the majority of the court (seven to three) that it was not

incident to the contract of employment that the company

should guarantee him against the negligence of a co-servant,

and that such negligence was one of the risks assumed by the

plaintiff. In the Farwell Case the action was by an engineer

for injuries occasioned by the negligence of a switchman, and

it was held that " he who engages in the employment of

another for the performance of specified duties and services,

for compensation, takes upon himself the natural and ordinary

risks and perils incident to the performance of such services,

and in legal presumption, the compensation is adjusted

accordingly ; and we are not aware of any principle which

should except the perils arising from the carelessness and

negligence of those who are in the same employment." It is

argued that each servant is an observer of the conduct of the

others and can give notice of any misconduct, incapacity, or

neglect, and can leave the service in case the employer con-

tinues such incompetent servants. The argument that the

servants were in different departments and therefore the rule

of observing and influencing the conduct of each other ought

not to apply, was dismissed as one likely to lead to great

Inconvenience in specific cases. Finally the whole matter is

placed upon the docti'ine that " the implied contract of the

master does not extend to indemnify the servant against the

negligence of any one but himself ; and he is not liable in

tort, as for the negligence of his servant, because the person

suffering does not stand toward him in the relation of a

stranger, but is one whose rights are regulated by contract

express or implied."

In the leading New York case of Coon v. Tlie Si/racuse and

Utica Bailroad,^ a track repairer was injured through the neg-

R,, 23 Pa. St. 384; Mad River, &c. R. v. Barber, 5 Oh. St. 511; Ilonner

В». 111., &c. R., 15 111. 550; Madison R. v. Bacon, 6 Ind. 205; Sullivan r.

Miss., &c. R., 11 Iowa, 421; Fraker v. St. Paul, &c. R., 32 Minn. 54;

Cooper V. Milwaukee, &c. R., 23 Wis. 668.

1 5 N. Y. 492, affirming 6 Barb. 231.

334 LIABILITY OF ^L\STER

lio-encc of trainmen, and it was held he could not recover, the

court contenting itself with resting upon the authority of the

English, South Carolina, and Massachusetts cases. Later

Xcw York cases accept the rule as unquestioned. ^

In the leading Pennsylvania case of Riinn v. Cumlerland

Valley Railroad Company'^ a track laborer while riding to his

work on a gravel train was injured by the negligence of the

engineer or conductor, and it was held that he could not

recover from the company. The court (two judges dissent-

ing) follows the earlier cases, saying, " Where we find a road

BO well beaten, it is easy to follow it, and its beaten character

is an indication that we may follow it with safety. The rule

announced by these cases is, that where several persons are

employed in the same general service, and one is injured from

the carelessness of another, the employer is not responsiljle."

The court then argues that the rule is one of convenience and

necessary to the proper conduct of business enterprises.

The rule laid down in these leading cases has been adhered

to in those jurisdictions and followed, with slight variations,