The trial court has found that, legally speaking, the sole cause of the accident to Kelly was the negligent failure to use the fender; and one of the important questions in the case is whether the defendant was responsible to Kelly for that failure. It was so responsible, if in law the negligence of the mate was the negligence of Kelly's master, while it was not, if such negligence was that of Kelly's fellow-servant.
The common-law rule that a master is not liable to his servant for injuries caused to the latter solely by the negligence of a competent fellow-servant, is recognized as the settled law of this State. Burke v. Norwich W. R. Co., 34 Conn. 474;Wilson v. Willimantic Linen Co., 50 id. 433; Darrigan v. New York N.E. R. Co., 52 id. 285; Zeigler v. Danbury N. R. Co., ibid. 543; Griswold v. New York N.E. R. Co., 53 id. 371; Nolan v. New York, N. H. H.R. Co., 70 id. 159. The rule seems plain enough in itself, but in applying it no universal, fixed and reliable principle, or test, for determining *Page 346 who are fellow-servants within its meaning, has been agreed upon. Different courts have adopted and applied different tests, and the natural result is conflicting decisions in the different jurisdictions, and a confused and unsettled state of the law of master and servant.
Speaking generally, two rules, applied as tests in questions of this kind, have obtained a wide acceptance. Under one, the test is whether the duty violated by the offending servant was one resting upon the master, or solely upon the offending servant; while under the other, the test is whether the offending servant, in what he did or omitted to do, was or was not pro hac vice the master. Under the first rule the test is mainly the nature and character of the duty violated by the offending servant. If it was a duty resting upon the master, the master, as a general rule, is liable to the injured servant for the negligence of the offending servant; if it was not such a duty he is not. Under this rule the rank or grade of the offending servant in the master's business, or the department of it in which he is employed, as compared with that of the injured servant, is not of primary importance in determining the master's liability.
Under the second rule, the test is mainly the relation of the offending servant to the master and to the injured servant. If in what he does he acts for and represents the master, and therefore pro hac vice is the master, then his negligence is the master's negligence. Under this rule the rank or grade of the offending servant in his master's business and the department in which he works, is regarded as of primary importance in determining the master's liability.
The first of these tests — the nature and character of the duty violated — is the one adopted in this State. This is the test applied in Wilson v. Willimantic Linen Co., 50 Conn. 433, in McElligott v. Randolph, 61 id. 157 and in Sullivan v.New York, N. H. H.R. Co., 62 id. 209; it is also the one, if not in form, in fact at least, applied in Darrigan v.New York N.E. R. Co., 52 Conn. 285, Gerrish v. NewHaven Ice Co., 63 id. 9, and in Sprague v. New York N.E. R.Co., 68 id. 345; for in each of these cases the duty violated *Page 347 by the offending servant was held to be a duty resting upon the master.
In the case at bar the trial court has found that the master violated its duty to furnish Kelly a reasonably safe place to work, and reasonably safe appliances; but this conclusion is based entirely upon the fact that the fender was not used. With that in use, it is found that the place and appliances were reasonably safe. The controlling question in the case is whether it was the duty of the defendant to see that the fender was used. We think it was not. It had furnished a sufficient fender, and a place in which it could be used, and it kept the fender in a proper and convenient place at all times ready for use. In doing this it had performed its full duty in this respect. It was not obliged to be there every time the boat was docked, to use the fender, or to see to it that it was used. It was the duty of the defendant to furnish the appliances: it was the duty of the servants to use them when necessary. When the owner of a vessel furnishes proper guardrails, gangplanks and hatchway covers for the use of the crew, we know of no case that has gone so far as to hold that he is liable to one of the crew, for the negligence of a fellow-servant, in leaving the guardrail down, the hatchway uncovered, or the gangplank insecurely fastened. Such negligence are incidental to the use by the crew of the appliances furnished by the master; and the only way the master is required to guard against them is to appoint a sufficient number of competent servants. Our conclusion is that the court below erred in holding that the defendant was liable for the negligence of the mate upon the facts in this case.
The following are a few of the many cases outside of our own reports which might be cited in favor of the conclusion reached in this case. Benson v. Goodwin, 147 Mass. 237;Kalleck v. Deering, 161 id. 469; Geoghegan v. Atlas SteamshipCo., 146 N.Y. 369; McLaughlin v. Camden Iron Works,60 N.J.L. 557; Sofield v. Guggenheim Smelting Co., 64 id. 605.
There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.