"A.W. of Utica" asks whether
there is a liability of a
railroad company to an employee
for injuries sustained through
the negligence of another
employee. On this matter the
original rule of law was that in
no case could a recovery be had
against a master separate and
apart from his own negligence
for any injury to a servant. The
master was bound to provide safe
appliances and also to exercise
ordinary skill and care in
selecting them. Having done this
his responsibility as to all his
servants in respect of personal
injuries ceased unless there
should be a subsequent perilous
negligence on his part. This
sweeping doctrine was based upon
what is essentially a false
foundation, namely, that a
servant on entering an
employment assumes all the
ordinary risks incidental to or
inherent in the employment,
including the negligence of his
co-servants. Now, it is true a
servant does assume the risks of
accident inherent in or
incidental to the business and
so does a passenger on a
railroad train. But it is not
true that negligence of another
servant or of any one else is
inherent in or incidental to any
business whatever and so a
servant no more assumes such
risk by his mere act of entering
the employment any more than a
passenger assumes the risks of
all negligence when he steps
aboard a train. The foundation
being false, the theory of law
built upon it was necessarily
unjust. And yet the courts at
first all upheld both the false
theory and the false foundation
whereon it rested. But at length
the injustice became so apparent
that the courts began to hem in
the application of the doctrine
advanced some by one device,
some by another, all tending,
however, to the correction of
the vicious principle which had
been established. Thus the
doctrine is now held extensively
that where a servant is injured
by the negligence of another who
has authority over him and thus
far stands in the stead of the
master the injured servant may
bold the master responsible for
the negligence of the
co-servant.
Then came in another theory
relaxing the original rule still
further, namely, that two
persons in the employment of the
same master, and in the same
general line of service, are
nevertheless not co-servants
where they are engaged in
different departments as, for
instance, one in running trains
and another in repairing the
track or engines.
Some of the states still retain
the original rule, false and
unjust as it is. But most of
them have modified it as noted
above and among them New York. A
few, as Iowa and Minnesota, have
swept away the original rule by
special statutes whereby the
liability of corporations for
injuries to servants rests on
precisely the same grounds as
the liability to others, no one
is to be presumed to assume
negligence. it is to be hoped
that all states will follow
these commendable examples.
______
"R.T., of Brooklyn," inquires
also concerning a question of
negligence, namely, whether a
municipal corporation is liable
for an injury arising from a
defect in an alley, the same as
for a like injury from a defect
in a street. A public alley is
nothing but a narrow street, and
there can be no reason for
making a distinction between
such an alley and a street in
regard to municipal liability.
As a rule, however, such
liability is rarely available,
because there can be few
instances where a person injured
through a defect in a street or
alley does not bring the injury
on himself by such a degree of
negligence as will take away the
right of recovery.
______
"T.M." asks whether fraud does
not prevent the statute of
limitations from taking effect.
A fraudulent concealment of the
cause of action does so. whether
in regard to personal claims or
to titles of real estate. The
statute does not begin to run
until the fraud either is
discovered or might be
discovered by ordinary care such
as a prudent man uses in his
business affairs.
______
"A Widow" presents a distressing
case, in which she can have no
relief, involving a principle of
law that ought to be universally
known. The executor of her
husband's estate defaulted with
the proceeds of all his property
and she procured judgment again
the three sureties on the
executor's bond. Two of these
sureties were solvent and the
other insolvent. The insolvent
surety, wishing to go into a
small business, secured from the
widow for a nominal amount his
release from liability under the
judgment. This unfortunately
released the other sureties who
were solvent and "A Widow" has
no recourse. The release of a
co-obliger releases all, for the
reason that it destroys the
right of contribution as to the
remaining co-obligers.
______
