
    Robert P. Fox vs. E. Sandford et al.
    
    Principal and agent. Liability of employer for injury by one servant to another in the business of their common employment. Where two persons are acting in a common employment under the same principal, if one is injured by the negligence, unskilfulness, or rashness of the other, the principal is not liable to the injured party in an action grounded alone upo.n such negligence in the employee.
    PROM KNOX.
    The plaintiff, Robert P. Eox, brought his action in the Circuit Court of Knox county against defendants Sandford and Shepperd, Leeds and Hoyt, for the recovery of damages for an injury sustained by him while in the employ of the latter three defendants in erecting a house, from the top of wbicb be was thrown, as he alleges, by the negligent and unskilful conduct of defendant Sandford. The defendants Shepperd, Leeds, and Hoyt were the undertakers of the work, the plaintiff a hand hired to work thereon, and Sandford was also a hired hand and foreman of the* job. The accident was occasioned by Sandford in paying out the guy rope connected with the derrick used in elevating the timber to the top of the building, by which the plaintiff was precipitated to the ground, a distance of twenty-five feet, and greatly injured. Shepperd, Leeds, and Hoyt were not present at the time of the accident, and gave no orders leading to such a result.
    At the February Term, 1856, the cause was submitted to a jury before Judge PatteesoN, who instructed the jury, in effect, that, under such circumstances, the defendants Shepperd, Leeds, and Hoyt would not be liable, but that if it appeared that the accident was the result of negligence, unskilfulness, or rashness on the part of the defendant Sandford, he would be liable to the plaintiff in damages for the injuries sustained by him. There was verdict and judgment in favor of Shepperd, Leeds, and Hoyt, and verdict and judgment for one thousand dollars damages against defendant Sandford. The latter and the plaintiff appealed in error to this Court.
    T. C. Lyon, for the plaintiff:
    The Court instructed the jury in this case substantially in respect to the liability of the defendant Sandford, that if the plaintiff was thrown from the building and injured in consequence of the neglect, unskilfulness, or want of proper care on the part of said defendant in unloosing the guy rope, the plaintiff would he entitled to recover. But if he was skilful and careful, and had been guilty of no rashness, want of skill or care, and the injury was the result of causes over which he had no control, the plaintiff would not he entitled to recover. The jury were authorized to look at all the facts and circumstances of the case to arrive at a proper conclusion.
    It is assumed that there is no error in this charge, and there was certainly evidence sufficient to support the finding of the jury. Story on Agency, § 453 e, p. 574.
    As to the liability of defendants Shepperd, Leeds, and Hoyt, arising on the state of facts in the record, the Court instructed the jury that when two persons are acting in a common employment under the same principal, if one is injured through the negligence, unskilfulness, or rashness of the other, the principal is not liable to the injured party. The Court further told the jury that the principals would not be responsible for the condition of the derrick on the morning of the accident.
    It is admitted that there are highly respectable authorities, American and English, which fully sustain the position assumed by the Circuit Judge in the above charge. These cases will be found cited in Story on Agency, § 453 d, note 1, and § 453 e, note 1. These eases are of the first impression in these courts, and were, it is admitted, elaborately and ably argued, particularly by Chief Justice Shaw.
    The Supreme Court of Ohio has, on the other' hand, adopted a different rule, and holds the principal liable to the agent or servant for the misfeasance or neglect of the coagent or servant.
    We maintain that the principle of total exemption from responsibility of the employer is too broadly stated in each of the cases above cited. The case in 3 M. & W. is correctly decided, hut we do not assent to the whole course of reasoning of the learned judge. His argument is principally founded on the inconvenience of maintaining the opposite rule. This is an unsafe mode of argument, and he has with much skill and plausibility pushed the argument to extreme and absurd consequences. He says, however, in this opinion, that the master is “no doubt bound to provide for the safety of his servant in the course of his employment to the best of his judgment, information, and belief.”
    This is all that we maintain. ■ And if the master is so bound, is there not a legal responsibility if he fails to perform this duty? There is no legal duty without its corresponding obligation.
    O. P; Temple, for Shepperd, Leeds, and Hoyt:
    We do not controvert the general principle laid down by Blackstone and other writers, with its qualifications, that if a servant, by his- negligence, does any damage- to a stranger, the master shall answer for his neglect. The question presented in this case is, where several persons are engaged in the same general service as hirelings, and one of them is injured by the carelessness or unskilfulness of another, is the employer responsible?
    His Honor, the Circuit Judge, held that he was not, and we think he held correctly. This view is sustained in the case of Priestly vs. Fowler, in 3 Meeson and Welsby, p. 1. One reason, among many others, for this holding there given is, that “the servant is not bound to risk his safety i;n the service of his master, and may, if he thinks fit, decline any service in which lie reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.”
    This question was recently decided in the same way by the Supreme Court of Pennsylvania, in the case of Ryan vs. The Cumberland Valley Railroad Company, as reported in the American Law Register for August, 1855, p. 598. The Court say in that case that this “is the rule even where the careless one is the superior of the other, or has a special duty to perform upon which the safety of the others depends.” See also 2 Kent, 281, note c and note 1. Story on Agency, § 453.
    In the case of slaves, on principles of humanity, it is right that the master should be required to protect one against the negligence of another. The slave is bound to obey; he has no discretion to refuse the service: hence, if his life is lost, or he is injured, in service of unusual risk and hazard, when he was hired for ordinary service, this Court has held that the hirer shall be responsible in damages to the owner. Mullen et al. vs. JEnsley et al., 8 Humph., 428. Rut not so in the case of servants or laborers for hire. Here “both are equal before the law, and considered equally competent to take care of themselves, and very often the servant is the more intelligent of the two.” The relation of protection and dependence does not exist; therefore the servant must look to the danger, and provide against it by increased compensation where he undertakes the service, or he may decline it altogether.
    
      J. R. Cocke, for Sandford, said:
    The Court instructed the jury, “that if it appeared in evidence that Eox, the plaintiff, and Sandford, the defendant, •were both in the employment of Shepperd, Leeds, and Hoyt, engaged in a common employment, and the injury to the plaintiff was occasioned by the neglect and unskilfulness of the defendant Sandford, yet, under the weight of authority, English and American, the Court felt constrained to charge the jury that the defendants Shep-perd, Leeds, and Hoyt could not be held liable in damages for such neglect and unskilfulness on the part of the defendant Sandford.”
    The distinction attempted to be established in this case has not, it is admitted, been recognized either in England or America until within the last few years. The language of the judges and of writers on the law has been, that principals were liable to third persons for the misfeasances, negligences, and omissions of duty of their servants and agents, without making any difference between strangers and fellow-servants. It is evident that Mr. Justice Story is not satisfied with the doctrine laid down in the case of Priestly vs. Fowler, 3 Meeson & Welsby, 1, and the case of Fanvell vs. The Boston and, Worcester Railroad Corporation, 4 Mete. R., 49. In section 458 f of. his work on Agency, he gives a number of cases in which the rule, if applied, would work the grossest injustice. The case of Ryan vs. The Cumberland Valley Railroad Company, Law Register for August, 1855, was not a unanimous decision of the Court: Lewis and Knax, judges, dissented. The Supreme Court of Ohio has repudiated the distinction. Little Miami Railroad Company vs. 
      Stevens, 20 Ohio, 415. As there is such a diversity of opinion on the subject, it can scarcely he considered a settled one, and it perhaps would not he deemed presumptuous to say, that all the reasons which would justify making the principal liable for injuries to strangers arising from the negligence of his agent or servant, would apply with equal force to the case of injury to a fellow-servant or agent from the same cause. What are those reasons ? See Story on Agency, § 453 5, quoting from Baron Parke. These are, that the principal had selected him as his servant from the knowledge of or belief in his skill and care, and could remove him for misconduct, and his orders he is hound to receive and obey. A person should, before employing another in his service, inquire into his character, and if he proves to he careless, imprudent, or unskilful, should refuse to employ him; and if he should retain another in his service without making this inquiry, and a third person suffers in consequence of his having done so, he ought to he made responsible. Does an agent select his fellow-agent from a knowledge of his prudent, cautious disposition and habits ? has he a right to dismiss him for misconduct, or is he under his direction and control? Is not the master or principal, in reason and justice, as much bound to his servant to select only prudent and skilful persons to transact his business, as to a stranger? To me it is difficult to see why he is not. It is hardly a satisfactory answer to the question to say that the agent or servant may provide for the hazard and risk which he incurs, by fixing the rate of his compensation; for it is, in, a thousand cases, impossible to foresee the danger. The extensive consequences which would flow from fixing the liability of principal in such cases — so strongly stated by Lord Abinger in the case in Meeson & Welsby — ought not to destroy the rule if it is a just and reasonable one, and consequences equally extensive result from making the employer liable to strangers for the negligences and misfeasances of his agents. We insist, then, that this honorable Court should follow the opinion intimated by Judge Story, and the decision in Ohio. If so, his Honor’s charge to the jury was erroneous.
    We appear for the defendant Sandford only. If a new trial should be granted to the plaintiff Eox as to defendants Shepperd, Leeds, and Hoyt, it is taken for granted that he would not be permitted to hold on to his judgment against the defendant Sandford; otherwise, if he should likewise recover judgment against them, the case would present the incongruity of two separate judgments against different defendants sued in the same action, and for the same cause of action.
    J. B. Heiskeul, for Shepperd, Leeds, and Hoyt, said:
    This is a case involving the question how far the master or employer is liable for the acts of his servants, as affecting each other. As against strangers, the law is clear that he is liable for all carelessness and negligence by which they are injured, and this is a doctrine most accordant with reason. The stranger must look to the ostensible head of the family, work, or manufactory; and as he has no power or option in the selection of the agents or servants by whose act he suffers, whenever he comes into a relation to the master to be affected by the act of the servant, he must be supposed to look to the master, by his skill and judgment in the selection of his agents, for his protection. But in the case of co-servants working together, knowing each other better than the master can do, and, with this knowledge, having their option to put themselves to the hazard of such carelessness or unskilfulness, the reason which applies to the former case has no foundation. It is this difference in the attitude of the parties which has given rise to the distinction taken by the cases, now numerous and well considered. To multiply instances would be profitless; but so many occur to every man who bestows a thought on the subject, that it is not very easy to refrain from stating some of them. Is every farmer an insurer against accident or carelessness between the hands he sends into the woods or the harvest? — that one will not let his axe fly from the helve; his wedge from the wood; that the cradle-scythe will not slip and cut the co-laborer; that an awkward stroke of the hoe will not wound him ? If such is the law, agricultural employers who are absent from their homes may be ruined by undertakings implied against the carelessness of men they have never seen, and implied, too, in favor of men to whom that carelessness is fully known, and the risk of which they have willingly taken. So of mechanical pursuits: journeymen working for the same employer, and associating every day together, are to be insured against the known carelessness of each other by a man to whom, from his relation to them, it is probably unknown. Such a construction of the law would alarm the whole world of active business men, and paralyze the whole business of active life. A man would not dare to employ two men to build him a fence nr an outhouse, lest the carelessness of the one should result fatally to the life or limbs of the other, and he be ruined by a verdict in damages.
    
      It may fee very well to make some distinction between cases where the laborers are employed so as to be known to each other, or so that they reasonably may be so, and those where they are not, or cannot be; and to leave open, nntil the necessity of -the case may demand it, the relation of the master in those vast and complex organizations growing out of the railroad corporations of the age. The doctrine has been fully applied to them in all the varied positions of their servants. But, since this case only presents the question between servants working in the same company, and carrying on their operations daily in each other’s view, the Court is at present only called upon by the case to say whether, in view of the state of the facts presented, the charge was right; not whether, abstractly considered, in view of a different state of facts, it would be precisely accurate. In a question so novel and important, caution may well be considered the dictate of wisdom.
    There is a technical question in this case which the counsel hardly think necessary to present in the aspect of the case on the principal question. How far is it admissible for a plaintiff to set aside verdicts • against one defendant and not against all ? It will be seen 'that the motion is for a new trial against Shepperd, Leeds, and Hoyt only. The case of McClung against the Bank, 9 Humph. 101, does not settle how this is in actions against defendants who may be sued jointly at common law; and it is still a question of interest, though one which will hardly be material in this case. ■
   CáRütheRS, J.,

delivered the opinion of the Court.

This was an action brought by Eox to recover damages against Shepperd, Leeds, and Hoyt, the undertakers, and Sandford, his coemployee, for an injury sustained by the plaintiff from the negligence and unskilfulness of defendant Sandford. The verdict was in favor of the defendants, Shepperd, Leeds, and Hoyt, and against Sandford for one thousand dollars damages. The plaintiff moved for a new trial as to Shepperd, Leeds, and Hoyt, and the defendant Sandford asked a new trial as to the finding against him. Both appeal in error from the judgment overruling their respective motions.

Shepperd, Leeds, and Hoyt were general undertakers of a building, and both Sandford and Eox were workmen employed by them. Eor the purpose of elevating some large timbers to the top of the wall, the latter was posted on the building, and the former managed a machine called a derrick, on the ground. By the reckless management of the derrick, as it is alleged, Eox was precipitated, with the timber, to the ground, and received the serious injury of which he complains. The proof shows that the guy rope was loosened by Sandford after the timber was partly up, against the warning of Eox, and by that the accident was produced. The inquiry for the jury was, whether in this there was a want of the proper skill and care necessary for the safety of those on the top of the wall. If there was no unskilfulness or negligence, it would be a case of inevitable accident, and the injury without remedy; but if it were otherwise, the defendant Sandford at least would be liable. This was the effect of the charge on that point; and the finding of the jury, there having been proof to sustain it, must be conclusive as to the case of Sandford.

But the other branch of the case presents more difficulty. It is true, as argued, that the authorities are not entirely harmonious upon the question of the master or employer’s liability for injury done by one of his servants to another by want of skill or negligence in the business of their employment. Upon this point, the Court charged “ that if it appeared in evidence that Eox and Sandford were in the employment of Shepperd, Leeds, and Hoyt, engaged in a common employment, and the injury to the plaintiff was occasioned by the neglect or unskilfulness of the defendant, Sandford, yet, under the weight of authority, English and American, the Court felt constrained, and so instructed the jury, that the defendants, Shepperd, Leeds, and Hoyt, could not be held liable in damages for such neglect or unskilfulness on the part of their co-defendant, Sandfordbut they could be, for any neglect of their own; “ but were not responsible for the condition of the derrick on the morning the accident happened.”

IVe are brought to the same conclusion in relation to the weight of authority, as well as the reason of the rule applied to the facts of the case before us. Story on Agency, § 453 and notes. 2 Kent, 281, top page, and notes. 8 Meeson and Welsby, 1. The reasoning by which this position is maintained need not here be reiterated, as it will be found in the cases referred to, and others there cited.

It will be observed that the facts of this case do not raise the question of the liability of the employer for want of due care in the selection of his servants, or making proper provisions for their safety. Such a case might fall under a very different rule.

In this case, we think there is no error against the appellants in either case, by 'which they could hare been injured,' in view of the facts in this case, and therefore affirm the judgment.  