NEW JERSEY LIGlITEB!GB 00.
NEW JERSEY LIGHTERAGE
(Circuit Oourt, E. D.New York. April 2,1885.)
MASTER AND SERVANT-INJURY TO EMPLOYE-NEGLIGENCE OF VICE-PRINCIPAL WHILE ACTING AS Co-EMPLOYE.
An employer is not liable to an employe for the negligence of a vice-principal in doing the duty of a co-employe of the person injured.
Motion for New Trial. Ohas. J. Patterson, for complainant. Benedict, Taft J: Benedict, for defendant. WALLACE, J. The plaintiff was injured by the negligence of the captain of a barge, owned by the defendant, while in loading the barge with iron rails. The captain at the time was assisting the plaintiff and other employes in the work. In loading the rails, two men worked on the hand-winch, one hooked the tongs upon the rails, and two pushed and guided the rails into the barge, when they were the winch; and it was the duty of the man at raised by the men the tongs to give the order to hoist to the men at the winch when the tongs were properly hooked. Prior to the accident, Qne Lee had been at the tongs, and the captain had been helping one of the men at the winch. At the time of the accident, the captain was at the tongs, and the plaintiff was one of the men to guide the rails. The captain gave the order to hoist prematurely, and the rail fell upon the plaintiff, inflicting the injuries for which his suit was brought. Upon the trial the judge instructed the jury that the negligence of the captain was the negligence of the defendant, and the motion for a new trial raises the question whether that instruction was correct. Stated in other terms, the question is an employer is liable to an employe for the negligenoe of a vice-principal in doing the duty of a co-employe of the person injured. It was assumed at the trial that the recent case of Ohicago, etc., R. 00. v. Ross, 112 U. S. 377, S. C. 5 Sup. Ct. Rep. 184, was an adjudication in point which is controlling in this court, and the instructions to the jury were given in consequence. The only question in that case was whether the corporation defendant was liable to an engineer managing the locomotive of a freight train who was injured in consequence of the neglect of a conductor of the train to communicate instructions to the engineer essential to the safety of the train; the conductor, by the regulations of the corporation, being in control of the train and of all employes on it, and reEponsible for all its movements. The court held that the conductor did not occupy the position of a co-employe with the engineer. Mr. Justice BRADLEY, delivering the opinion, used this language:
"A conductor, having the entire control and management of a railway train, occupies a very different position from the brakeman. the porters, and other subordinates employed. He is in fact, nnd should be treated as, the
personal representative of the corporation, for whose negligence it is responsible to subordinate servants."
The case turned upon this point, and it having been ruled against the defendant it was not necessary to decide any other question. The conductor was charged with the duty of giving instructions, in the absence of which the engineer could not perform his duties intelligently, or protect himself or his employes from danger. The engineer was injured in consequence of the conductor's failure to perform this duty. As he was not a co-employe of the engineer, the risk of the conductor's negligence was not among those incident to the employment which the engineer impliedly aSi:!umed when he engaged in the service of the corporation. The decision is of marked significance, because it departs from the rule established ,by the courts in England, New York, and Massachusetts, and other 'courts, that all those are fellow-servants who are engaged in a common object in the business of the employer, whether they are of the same grade of authority or not. The doctrine of these is thatall the employes of the same employer, engaged in carrying forward the same general enterprise, a;lthough in different departments and in different ranks of supremacy, are co-employes, who, by the implied terms of their employment, assume towards the employer the risks arising from the negligence of any of their number. The Ross Case, on the other hand, is in line with Cowles v. Richmond, etc., R. Co. 84 N. C. 309; Chicago, etc., R. Co. Y. Bllyfield, 3i Mich. 205; Whalen v. Centenary Church, 62 Mo. 32G; and decisions in Ohio and Kentucky citedin the opinion. The case does not touch the question here, which is, not whether the defendant is liable to a subordinate employe for the negligent act of .the captain in the discharge of his duty, but whether the defendant is liable for the negligence of the captain, not as captain, but as a subordinate employe. The solution of this question depends upon the implied obligation assumed by an employer to his servant. Unless is a breach of that obligation there is no negligence. Briefly stated, this obligation is that the employer will not expose the servant to any unreasonable hazards, in view of the natul'e of the services to be performed. As to those things which are to be done by the employer .personally he undertakes not to be negligent. As to those which he is not to do personally he undertakes to use due care to see that they are properly done; and as incidents of this obligation he is to use dne care to provide safe appliances and facilities for the servant in the service to be performed, and to employ competent fellow-servants to assist him, if fellow-servants are required. Those things which are to be done by the employer personally are employer's duties, and if he delegates them to others he undertakes for their proper discharge precisely as though he personally were to discharge them. . ,Conversely, the servant who engages in the employment of another
QUINN V. NEW JERSEY L1GH1'ERAGE 00.
for the performance of specified duties, takes upon himself the nat. ural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, his compensation is adjusted accordingly. Among these risks are those arising from the carelessness and negligence of fellow-servants; because these are risks which are incident to the service, and he can as effectually guard against them as the employer. This has been deemed to be the law by all the authorities, beginning in England with Priestley v. Fowler, 3 Mees. & W. 1, and in this country with Murray v. South Carolina R. Co. 1 McMul. 385, and Farwell v. Boston <t W. R. Co. 4 49; and the doctrine is reiterated in Hough v. Railway Co. 100 U. S. 213. If it is within the contemplation of both the employer and employe that when the former fully discharges his duty of preparation and general supervision for the particular service, all other incidental risks are assumed by the latter, and are included in his compensation, it follows logically that the employe can only allege negligence when the employer has failed, either in person or by his agents, efficiently to discharge his duty. If an employer does not undertake responsibility to a servant for the which are ordinarily to be performed in the service by a co-servant, there is no reason why he should be held liable for the negligent performance of those acts. And if the duty negligently performed is not the master's duty, but a servant's duty, the servant injured has no right to complain unless the employer was negligent in selecting the co-servant. The distinction between the acts of negligence for which the master is liable, and those of which the employe assumes the risks, is well stated in Davis v. Central Vermont R. Co. 45 Amer. Rep. 593, S. C. 55 Vt. 84, as follows: "The rule of law which exempts the master from responsibility to the servants for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the employer from the exercise of ordinary care in supplying and maintaining suitable instrumentalities for the performance of the work required. One who enters the employment of anothe·r has a right to connt on this duty, and is not required to assume the fisks of the master's negligence in this respect. The fact that it is a duty which must always be discharged, when the employer is a corporation, by officers and agents, does not relieve the corporation from the obligation. The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule, to be regarded as fellow-servants of those who are engaged in operating it. 'fhey are charged with the master's duty to his servant. 'rhey are employed in distinct and independent departments of service, and there is no difficnlty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require. In one, the master cannot escape the consequence of the agent's negligence; if the servant is injured in he may." The true inquiry in this case is whether the character of the act of the captain was one which it was incumbent upop. the defendant to see properly performed. This is the rule of Crispin v. Babbitt, 81
N. Y. 516, where it was held that the liability of a master for an injury to an employe, occasioned by the negligence of another employe, does not depend on the grade or rank of the latter, but upon the character of the act, in the performance of which the injury arises. In that case, the plaintiff was injured by the act of the manager and superintendent of defendant's factory, who carelessly started a wheel while the plaintiff was occupied with the machinery. The court below refused to charge that this was the act of an operative for which the defendant was not liable, and the court of appeals held this refusal to be error and reversed the judgment. RAPALLO, J., the opinion of the court, approved the language of CHURCH, C. J., in Flike's Case, 53 N. Y. 549, as follows: "The true rule, I apprehend, is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master, without regard to the rank or title of the agwt intrusted with their performance. It is as to such acts the agent occupies the place of the corporation. and the latter is liable for the manner in which they are performed." This was also held in Hoke v. St. Lonis, etc., R. Co. 11 Mo. App. 574, where it was determined that where a road-master of a railroad company, having superintendence of the road department, was negligent in an act which he assumed to do as a mere boss of a gang, and a workman was injured, the company was not liable as for the negligence of a vice-principal. The court used this language: "But just as the tortious act of a servant to make the employer liable must pertain to the particUlar duties of that employment, so the wrongful act of a vice-principal or alter ego must be an act done by him as vice-principal. The fact that he is vice-principal in Olle department of the business does not make all his acts the acts of a vice-principal." Applying the rule to the present case, where the captain of the barge was not performing a captain's duty while working at the tongs, but that of a common laborer, his negligence was not that of a viceprincipal but of a co-laborer. 11 he had directed any of the men assisting the plaintiff to do that particular part of the work which he undertook to do himself, as he might have done if he had seen fit, and the plaintiff had been injured by the fault of the one thus selected, the defendant would not have been liable, in the absence of proof that the captain had selected an incompetent man for the place. The plaintiff has no more gronnd of complaint than he would have had if he had been injured by the carelessness of any of his fellowlaborers. It was the act of a co-servant, and among the risks incident to the employment which the plaintiff impliedly assumed when· he engaged in the work. The captain exercis no more control over d him than did the other laborers. A new trial is therefore ordered.
BOXES OF OPIUM V. UNITED STATES.
THREE THOUSAND EIGHT HUNDRED AND EIGHTY BOXES OIr OPIUM V. UNITED STATES.
(Vi1'cuit Oourt, D. Oalifornia. 1.
CUSTOMS DUTIES SHIP·· SMUGGLING -
September 20, 1883.)
DECLARATIONS Oll' STEWARD OF
Declarations of the steward of a ship, on which it is claimed certain opium was smuggled, made to the officers seizing such opium an hour after the seiz. urjl, but while the opium was in their possession near the p lace of seizure, wait. ing to be transport.ed, I.eld admissible, in an action to condemn such opium, as part of the res ge,taJ, though not made in the presence of, or by authority or with the knOWledge of, the claimant. :.l
A letter written by a third party, whom the evidence tended to implicate, to other parties in Uhina two months afler the seizure, apparently refl'rring to the transaction, and left by the writer with the claimant, who added a paragraph thereto, also seemingly referring to the transaction, and a letter written by a Uhinaman to another Uhinaman in China, supposed to refer to passages in the other letter, both letters being put in the same envelope, and directed and mailed to the party in China, also held admissihle.
SAME-PROBABLE CAUSE-REV. ST. § 909-HuRDEN OF PRGOF.
When the evidence is sufficient to show prohable cause, in cases of information to condemn smuggled goods, the burden of proof is on the claiinant to show the innocence of the transaction.
SAME-PREPONDERANCE OF EVIDENCE-PROOF BEYOND REASONABLE DOUBTFORFEITURE OF GOODS.
A mere preponderance of evidence, in a case by information to condemn smuggled govds, in favor of the guilt of the transaction, will justify a decn:u of forfciture.
Information in 1'em to Condemn Smuggled Opium. Philip Teare, U. S. Atty., and A. P. Van Duzer, Asst. U. S. Atty., for libelant. W. H. L. Bnrnes and George W. Towle, Jr., for claimant. SAWYER, J. This is an appeal from the decree of the district court, condemning the opium in question, on the ground that it had been smuggled into the port of San Francisco. 'rhe record from the district court contains nearly 1,700 pages of legal cap, and nearly 800 pages additional testimony have been taken in this court. The case was argued orally, and submitted a long time ago, the argument occupying 13 days, with leave to file printed briefs, the last of which was filed March 10, 1883. Owing to a large number of cases having precedence, and the large record to examine, it was impossible to properly take the case up before the summer vacation, or to dispose of it till now. The large amount of new testimony tltken in this court is upon the points wherein the district conrt held the evidence to be deficient, and is additional to, and not as has been claimed in conflict with, the claimant's case as made in the district court; and it is of such a character as to require a thorough and careful re-examination of the entire Cltse, and such examination has been given to it. The following