Concurring opinion of
Read, J.I concur in the reversal of the judgment for errors committed on the trial in the court below. But as I do not agree as to all that is laid down, as the rule that should govern in the future trial of the case, I think it proper to state my views of the law.
The general rule as to the non-liability of a master to a servant for an injury occasioned by the negligence of a fellow-servant has been firmly established by a series of decisions in England, Scotland, Ireland and America for the last thirty odd years. The first case in England was Priestly v. Fowler, in the Court of Exchequer, in 1837, and the last case that of Wilson v. Merry, decided in the House of Lords on the 29th May 1868, 1 Scotch *251& Divorce Appeals 326 (Law Rep.), but better reported in 19 Law Times Rep. N. S. 30, where the arguments of counsel are given at length, Sir Roundell Palmer citing Albro v. Agawam Canal Company, 6 Cush. 75. This case is of course of the highest authority not only as a decision of the ultimate court of appeal of Great Britain and Ireland, but of a tribunal composed of the Lord Chancellor (Lord Cairns), Lord Cranworth, Lord. Chelmsford and Lord Oolonsay, judges of the highest reputation for learning and ability. In Caldwell v. Brown, 3 P. F. Smith 453, decided in 1866, the cases in this country recognising the rule are stated.
The earliest remarkable case in this country is that of Farwell v. Boston and Worcester Railroad Corporation, 4 Metcalf 59, decided in March 1842 by Shaw, C. J., which has always been considered as a leading decision of high authority, both in England and America. In his opinion the Chief Justice quoted Priestly v. Fowler, 3 Meeson & Welsby 1, and Murray v. South Carolina Railroad Company, 1 McMullen 385. This decision was quoted and followed by the Supreme Court of New York in Brown v. Maxwell, 6 Hill 592, in July 1844.
The cases in Massachusetts are very instructive: Hayes v. Western Railroad Corporation, 3 Cushing 270, decided in 1849, where one brakesman was injured by another brakesman although the train was short of hands; Gelshannon v. Stony Brook Railroad Corporation, 10 Cushing 222, decided in October. 1852, where a common laborer riding to his place of labor on a gravel train was injured by the negligence of the company’s servants; the company was held not liable although both servants were not in a common employment.
“ If the plaintiff,” said Dewey, J., “ was by the contract of service to be carried by the defendants to the place for his labor, then the injury was received while engaged in the service for which he was employed, and so falls within the ordinary cases of servants sustaining an injury from the negligence of other servants. If it be not properly inferable from the evidence that the contract between the parties actually embraced this transportation to the place of labor, it leaves the case to stand as a permissive privilege granted to the plaintiff of which he availed himself to facilitate his labors and service, and is equally connected with it and the relation of master and servant, and therefore furnishes no ground for maintaining this action.” \
This covers the present case in either aspect of the evidence.
This case was preceded by the cases of Albro v. Agawam Canal Company, 6 Cushing 75, and King v. Boston & Worcester Railroad, 9 Cushing 112, and followed by Seaver v. Boston and Maine Railroad Corporation, 14 Gray 466, where a carpenter was carried over the railroad to repair fences, bridges and switch-frames, and *252was injured by the negligence of the engineer or of servants whose duty it was to inspect the axles of the cars; and all these cases are recognised and approved in Gilman v. Eastern Railroad Corporation, 10 Allen 233, decided at January Term 1865.
In this case the corporation was held not to be responsible to a person employed by it to repair its cars, for a personal injury arising from the negligence of a switch man, in failing properly to adjust a switch upon the track, over which he is carried by the corporation, free of charge between his home and the place of his work.
In England the authorities support this view. Waller v. South East Railroad Company, 22 Law J. Exch. 205, May 7th 1863, was the case where the guard was killed, by the negligence of the gauger of the plate-layers, to renew the decayed metals which fasten the chains to the sleepers of the railways. Lovegrove v. London and Brighton Railroad Company, 33 Law J. C. P. 329, 6th June 1864, was the case of a laborer filling trucks with ballast, injured by negligence of plate-layers: Feltham v. England, Law Rep. 2 Q. B. 33, November 24th 1866. In Morgan v. Vale of Neath Railroad Company, Law Rep. 1 Q. B. 149, in the Exchequer Chamber, November 27th 1865. It was the case of a carpenter who was injured by porters in the company’s service, carelessly shifting an engine on a turn-table.
In all these cases the companies were held not liable.
In Tunney v. Midland Railroad Company, Law Rep. 1 C. P. 291, January 23d 1866, it was held that a laborer carried not as a passenger but in the course of his contract of service, there was nothing to take the case out of the ordinary rule which exempts a master from responsibility for an injury to a servant through the negligence of a fellow-servant, where both are acting in pursuance of a common employment.
The case in 10 Cushing 75 was referred to in the argument as it had been placed in a note to one of the reports of Morgan v. Yale of Neath Railroad Company.
In view of these authorities and their entire coincidence with the general rule] the correctness of which is not disputed, I am of opinion that Dennis O’Donnell was not a passenger but a servant of the company in the same common employment as the engineer, fireman, conductor and other servants of the company.
The rule as to strangers as laid down by my brother Agnew as to the duties and liabilities of the company with regard' to their track, road-bed and machinery, is perfectly sound, but it may have a large qualification as to servants engaging as such with a full knowledge of their state and condition.
I concur in reversing the judgment and awarding a venire de novo.