(dissenting). — I am unable to agree with the majority of the court in the conclusions reached in this case. I agree that the doctrine of the nonliability of the master to the servant for the negligence of a fellow servant seems to be now well settled. I shall not undertake to review the numerous authorities, nor to discuss the many hotly contested cases through which this questionable doctrine has passed. It has come up “through great tribulation,” and is possibly entitled to a rest. But the decision of a majority of the court in this case proceeds a step further, and that, too, in the wrong direction, to exempt the master, not. only from the consequences of his servant’s negligence, but from that of his own, if it appear that a coservant contributed to the result. This proposition is, to my mind, too dangerous in its tendency, and too far reaching in its consequences, to be allowed to pass without dissent. That the grounds of my dissent may not be misunderstood, I will state what I understand to be the precise issue. The plaintiff alleges, in substance, that the injury for which redress is sought was the combined result of the conduct of the injured party’s fellow servant and the use of defective machinery (a way car) in the hands of the injured employee, which he was induced to use by the promises of the employer to repair. To this count a demurrer was interposed and sustained. The opinion of a majority of this court affirms the action of the court below.
I shall endeavor to sustain the proposition that, while the master is not liable to one servant for the wrongful act of a fellow servant, he is nevertheless liable for his own wrong; and that he can not escape that liability by showing that the negligence or wrong of the injured party’s fellow servant contributed to the result; and that while an employee assumes the ordinary risks incident to his employment, among others, breakage of machinery, and injury from defects in machinery, yet if the servant discover defects in such machinery, and point them out, and the master promise to repair within a reasonable time, and the servant is induced thereby to continue in the use of such defective machinery, the danger to such use not being so imminent or impending as to deter a man of ordinary prudence, and while thus employed he is injured by such machinery, he has a right of action against the master. 6 Hurl. & N. 937; 76 Pa. St. 389; 20 Minn. 9; 62 Mo. 35; 100 U. S. 218.
Before, however, inviting attention to the discussion of the main question involved, I desire to suggest, with great respect, that it seems to me the reasoning employed by the majority to sustain the demurrer is at fault, in that the conclusion is reached from two absolutely contradictory premises. It is held that the count is defective, in that it shows that the dangerous character of the machine (way car) was so apparent that it was contributory negligence to use the car. This for the purposó of bringing the case within the rule laid down by the supreme court of the United States in the case of District of Columbia v. McElligott, 117 U. S. 621. This position, however, is not only abandoned, but entirely overturned, in the effort to establish the contrary proposition, that the defective machinery, so far from being so palpably dangerous as to prevent its use by an ordinarily prudent man, was not in.fact at all dangerous, and did not in fact even contribute to, much less cause, the accident. The rule as to the effect to be given to the negligence of a fellow servant, when combined with the negligence of the master, is thus stated in note 10, page 981, Thompson on Negligence: “It is but another expression of rules already announced, to say that, if the negligence of the master combines with the negligence of a fellow servant, and the two contribute to the injury, the servant injured may recover damages of the master.” The learned author cites, in support of this proposition, 76 N. C. 320, wherein the doctrine is laid down in this language by Reade, J.: “The decisions, both English and American, go very far toward the conclusion that one servant can not recover of the employer for any injury which results from the negligence of a fellow servant, in a business common to both. There may be exceptions, but, grant that to be so for the sake of argument, yet it is not so where the employer contributes to the negligence of a fellow servant, or to the injury, as if he employ an unfit servant, or, as in the case of a bad engine, knows that it is bad, and fails to repair it. So in this case, if the defendant answers that plaintiff can not recover because the injury resulted from the negligence of his fellow servant, the engineer, the plaintiff may reply that the defendant contributed to the negligence of the engineer, and to the injury, by having a bad engine.”
The same doctrine was laid down in the case of Gould v. Boston & Albany Railroad Company, 73 N. Y. 38. The facts in that case were substantially as follows: The plaintiff was engineer in the defendant’s employ, and, as such, went with a freight train from G-reenbush on the morning of February 3. This train was preceded by one under an engineer named Hughes, with seventeen cars, two brakemen, and a conductor. Plaintiff’s evidence tended to show that three brakemen were necessary to such a train, and were usually sent. One or two other trains had preceded it the same morning. There was a head conductor, Rockefeller, who gave the conductors directions as to what cars were to go in the different trains. He also assigned the brakemen to go with the several trains. After receiving instructions, trains were started by, and were each under the control of, each conductor. Three brakemen had been assigned by Rockefeller, and were ready to go with Hughes’ train of seventeen cars on the morning in question, but one overslept himself, and failed to go, and the conductor of the train started without him, and without giving any notice to the head conductor, Rockefeller, of the absence of the third brakeman. Hughes’ train, upon arriving at Chatham, was stopped to take coal upon the engine, as was customary. A train ahead of it still stood at the coal pile taking coal, and Hughes’ train stopped and stood behind it for some ten minutes. The conductor and one brakeman got off and went forward to be ready to put on coal. When the forward train had gone, Hughes started his train up to get to the coal pile. The train broke in two and eleven cars ran back. Upon them was the other brakeman, named Losty, who tried in vain to stop them. They collided with plaintiff’s train, and he was injured. In this case it was held that the company were liable. Say the court, Andbews, J., delivering the opinion: “The rule that the master is not liable for the negligence of a coservant does not, however, go to the extent of exempting him from liability in every case when it appears that he did not himself do or direct the doing of the negligent act, or even when the immediate negligence is that of a person who in some sense was the coservant of the person injured. There are certain duties which concern the safety of the servant, which belong to the master to perform, and he can not rid himself of responsibility to his servant for not performing them, by showing that he delegated the performance to another servant, who neglected to follow his instructions, or omitted to do the duty intrusted to him. The duty of the master to select competent servants, and to provide safe implements and machinery for the use of his servants, belongs to this class. The rule that the servant takes the risks of the service ‘supposes,’ says Lord Cranworth, ‘thatthe master has secured proper servants and proper machinery for the conduct of the work.’ ” Citing Barton Shill Coal Co. v. Reid, 3 Macq. 275. It is there held that the duty to provide competent servants and proper machinery is a duty at all times resting upon the company, which it was bound to discharge for the protection of all persons, its servants as well as others, and which, if neglected and injury to a servant resulted from the neglect, gave a right of action, notwithstanding the fact that the immediate negligence was that of coservants intrusted with such performance. The rule is thus stated in the case of Paulmier, Administrator of Cohart, v. The Erie Railroad Company, 31 N. J. Law, 155: “The rule already referred to is that the master is not responsible to one servant for the ill consequences of the negligence of a fellow servant in the course of common employment. The reason for this rule is that, as the master can not prevent carelessness in his servants, it is reasonable to presume each servant agrees to run the risk of that which he knows, in the nature of things, to be inevitable. But the servant does not agree to take the chance of any negligence on the part of his employer; and no case has gone so far as to hold that, where such negligence contributes to the injury, the servant may not recover. It would be both unjust and impolitic to suffer the master to evade the penalty for his misconduct in neglecting to provide properly for the security of his servants. Contributory negligence, to defeat a right of action, must be that of the party injured.”
In the case of Cayzer v. Taylor, 10 Gray (Mass.), the cause of action was stated substantially as follows: The defendant negligently managed his engine, and did not provide a competent and suitable engineer and boiler and engine and pump and gauge and appendages and machinery and precautions for safety used therewith, but knowingly and carelessly provided such as were not competent and suitable, and sufficiently safe, and knowingly and carelessly continued the same in use, and improperly used them while out of order and unsafe, either solely or in connection with his servants. There was a verdict for the plaintiff, and, on appeal to the supreme court, it was said by Thomas, J., delivering the opinion: “It is now well settled law that one entering into the service of another takes upon himself the ordinary risks of the employment in which he is engaged, including the negligent acts of his fellow workmen in such employment [citing Farwell v. Boston & Worcester Railroad Co., 4 Metc. 49; King v. Boston & Worcester Railroad Co., 9 Cush. 112; Gillshannon v. Stony Brook Railroad Co., 10 Cush. 228]. It has not been settled that the master is not liable for an injury which results from the employment of an incompetent servant, or use of a defective instrument. If the defendant employed a competent engineer, and used a boiler properly constructed and guarded, he would not be responsible for the injuries resulting from an act of carelessness or negligence of such an engineer; but we are not prepared to say that if one uses a dangerous instrumentality without the safeguards which science and experience suggest, or the positive rules of law require, he is not to be liable for an injury resulting from such use, because the negligence of one of his servants may have contributed to the result, or because a possible vigilance of the servant might have prevented injury. The very object and purpose of a safeguard, like the fusible plug, or protection against the occasional carelessness and negligence of the engineer. It is intended to be in some degree a substitute for his vigilance, to keep watch if he nods. To say that the master should not be responsible for an injury which would not have happened, had a safeguard required by law been used, because the engineer was negligent, would be to say, in substance and effect, that he should not be liable at all for an injury resulting from the failure to use it. * * * The counsel for the defendant asks of us a liberal application of the principle by which the servant is presumed to assume the risks of the business, and, among others, the negligence of his fellow servants, for the protection of the master. The principle should not be so extended as to impair in the least degree the obligation resting upon the master in the prosecution of a business, involving unusual risks of health, or life or limb, to employ well guarded instruments, with competent engines.” Continuing the quotation from the note already cited from Thompson on Negligence, it is said: “This [the liability of the master for injuries to servants] happens where the negligence of the master in furnishing defective machinery or appliances, or an insufficient force of colaborers, combines with the negligence of the servants whose duty it is to oversee and use the particular machinery, whereby another servant is injured; or where the negligence of the master in selecting an incompetent servant combines with the negligence of such servant, or when the negligence of a railroad company in not furnishing a sufficient number of workmen for the management of a train, combines with the negligence of a particular servant in starting a train while insufficiently manned. * * * Perhaps a better expression of the rule is that given in the headnote of Cayzer v. Taylor, 10 Gray, 274, ‘that the master is liable to his servant for injuries resulting from a defect in his machinery, although the negligence of a fellow servant contributes to the accident.’” The doctrine is thus stated by Mr. Wood, at page 685 of his work on Master and Servant: “ The servant, although he may know that the instrumentalities of the business are not in good repair or condition, is not therefore necessarily chargeable with negligence in remaining in the master’s employ, and using them, unless real danger therefrom is apparent. In all cases were there is any doubt, the question is for the jury.” “The master,” says the same author, at page 687, “is bound to exercise reasonable care to prevent accidents to his workmen. He is bound to furnish suitable machinery, and see that it is properly protected and kept in proper repair.” The ease of Snow v. Housatonic Railroad Co., 8 Allen, 441, was an action against the railroad company to recover damages incurred by the plaintiff, who was injured while endeavoring to uncouple the train. The proof showed that the accident was the result of a defect in the road, of which defect the plaintiff had knowledge. Bigelow, J., in a very able opinion, wherein he reviewed the questions relating to the relations existing between master and servant, held that the continuance in the service of the company by the plaintiff after knowledge of the defect was not of itself evidence of such negligence as to defeat the action, and that in all such cases the question of negligence on the servant’s part is a question for the jury. The rule that the master is liable for an accident growing out of the use of defective machinery by tbe servant is thus laid down in Wood, Master and Servant, section 378: “But if there is any evidence that tends to excuse the plaintiff from the imputation of negligence on his part, as that he had called the attention of the master to the defect, and he had promised to repair it, or if the danger was not obvious, or if he incurred the risk by the express direction and command of the master or his agent, and the danger was not inevitable or a necessary result of performing the service, then it is a question for the jury whether or not the performance of the service, or his acts at the time of the happening of the injury, were negligent in fact. Where the servant, being aware of the danger of the service, complains to the master, and he promises to remedy the defect, the master is liable for injuries resulting to him therefrom, and he is not chargeable with contributory negligence by remaining in the service, unless the danger is so great that a man of ordinary prudence would not remain.” In support of this proposition a long line of authorities is cited. Mr. Wharton, in his work on Negligence, supports the same proposition, and speaks of it as a doctrine peculiar to this country. This, however, is not altogether correct, the leading English case on the subject being that of Clarke v. Holmes, 7 Hurl. & N. 942. The same doctrine is supported by the following decisions: “McGowan v. St. Louis & Iron Mountain Railroad Co., 61 Mo. 528; Conroy v. Vulcan Iron Works, 6 Mo. Ct. App. 102; Greenleaf v. Ill. Central Railroad Co., 29 Iowa, 14; Patterson v. P. & C. Railroad Co., 76 Pa. 389; Laning v. N. Y. C. Railroad Co., 49 N. Y. 521.
The doctrine of the master’s liability to the servant for accidents resulting from the use of defective machinery is thus laid down by Mr. Justice Harlan in the case of Hough v. Railroad Co., 100 U. S. 213: “ If the servant of such a company, who. has knowledge of the defects in the machinery, gives notice thereof to the proper officer, and is promised that they shall remedy it, his subsequent use of it, on the well grounded belief that it would be put in proper condition within a reasonable time, does not necessarily, or as a matter of law, make him guilty of contributory negligence. It is a question for the jury whether, in relying upon such promise, and using the machinery after he knew its defective and insufficent condition, he was in the exercise of due care. The burden of proof in such case is upon the company to show contributory negligence.” Nor can the master shield himself from responsibility for injury growing out of the use of defective machinery by showing that the negligence of a fellow servant contributed to it. Where the injury is the result in part of the negligence of a fellow servant, and in part the negligence of the master, the latter is liable. In the case of Tennessee Coal, Iron & W. Railroad Co. v. Kyle, 8 So. Rep. (Ala.) 764, the accident resulted from a collision between an engine (running without a cowcatcher or pilot) and a cow, and the company was held to be liable. In the case of Town v. Michigan Cent. Railroad Co., 84 Mich. 214, 665, the plaintiff, an engineer, was injured by running into an open switch. The switch had some months before been abandoned, and the lights taken down. Shortly previous to the accident, however, the switch had been reopened, but the lights had not been replaced. The company contended that the absence of the light was not the proximate cause of the accident; that if the switch had been locked the engine would have passed over safely; and that the opening or unlocking of the switch was caused either by the intermeddling of a stranger, or by the negligence of a fellow servant of the plaintiff, and that in either event he could not recover. But the court held that, if the lights would have prevented the accident by giving timely warning of the condition of the switch, their absence was just as much the proximate cause of the accident as the unlocking or turning of the switch, “and if they were concurrent causes the defendant would be liable.” In Cone v. Railroad Co., 81 N. Y. 206, the company was held liable for an accident resulting from the sudden starting of a locomotive, caused by its being out of repair. In that case, as in this, the doctrine of the negligence of a fellow servant (the engineer in charge) was invoked. If he had been careful, it was alleged, he might have prevented the accident. But the court held otherwise, saying: “If this doctrine is accepted, it will loosen the rule of responsibility, which now bears none too closely upon corporate conduct.” In Elmer v. Locke, 125 Mass. 575, the injury was the combined result of the defective construction of trestle-work and the negligence of a fellow servant. The defendant was held liable, the court holding that “it does not exonerate him from the consequences of a failure in the performance of his duty,- if such failure contributed to the injury, to show that if others for whom he was not responsible had done their duty the accident would not have occurred;” citing 10 Gray, 274; 11 Allen, 560; 97 Mass. 361; 111 Mass. 136. To the same effect is the case of Franklin v. Winona & St. Paul R’y Co., 37 Minn. 409. The same defense as in this case was attempted to be set up in the case of Ellis v. N. Y., L. E. & W. R’y Co., 95 N. Y. 546, but the court said: “This rule [the fellow servant rule], however, has no application if the company has at the same time disregarded its obligation to provide a suitable roadbed or engine or cars.” The following authorities also support the same proposition: 78 Mich. 513; 46 Wis. 497; 29 Kan 149; 10 Gray, 281; 73 N. Y. 38; 5 Vroom (N. J.) 551; 1 McCrary, 516; 76 N. C. 320; 100 N. Y. 516. Indeed, the doctrine of the master’s liability, where his negligence contributes to the accident, is settled by such an unbroken chain of authorities as to lead the learned author of the notes to English and American railroad cases to declare: “ The cases approving this proposition are numerous, and the doctrine is supported with a unanimity not to be found among the authorities on any other branch of the law of fellow servants.” 44 Am. & Eng. R. R. Cases, 623. This doctrine “has been so often asserted by the courts of the highest character as to be no longer an open question.” 48 Am. & Eng. R. R. Cases, 335. It is a cruel and inhuman doctrine that the employer, though he is aware that his own neglect to furnish the proper safeguards for the lives and limbs of those in his employment, puts them in constant hazard of injury, is not to be held accountable to those employees, who, serving under him, under such circumstances, are injured by his neglect and omissions.” Id.
The fatal error, which, in my opinion, lurks in the doctrine propounded by the majority of the court, consists : First, in the application of the doctrine of fellow servants, in a qualified sense, at least, to the relation of master and servant; and, second, in the application of the doctrine of proximate and remote, mediate and immediate cause, to cases wherein the injury is the result in part of the negligence of the master and in part of that of the servant. I affirm without hesitation that, wherever the facts of the case demonstrate that the negligence of the master contributed to the accident, negligence is to be regarded, as a matter of law, as direct and proximate. This doctrine is laid down without qualification by the supreme court of the United States in the case of Grand Trunk Railroad Co. v. Cummings, 106 U. S. 702, where the court say: “In the instruction given we find no error. It was in effect that, if the negligence of the company contributed to, that is to say, had a share in producing the injury, the • company was liable, even though the negligence of a fellow servant of Cummings was contributory also. If the negligence of the company contributed to, it must- necessarily have been an immediate cause of, the accident, and it is no defense that another was likewise guilty of wrong.” The only possible escape from this unbroken line of authorities is to say that, notwithstanding the declaration of plaintiff in error that her late husband came to his death “also by and through the negligence, carelessness, default, and improper conduct and wrongful act of the defendant, in defaulting, refusing, and neglecting to furnish a proper caboose and way car,” yet this court will determine, as a matter of fact, that the alleged defect in the way car contributed nothing whatever to the accident; that, even if the deceased had been provided with a proper way car, the result would have been the same. I insist that this and like questions are matters for the jury. “ The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact, in view of all the circumstances and facts attending it.” Milwaukee & St. Paul R'y Co. v. Kellogg, 94 U. S. 474.