New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1879-09-03

9aklL1. lft.l1vl
different nature and wholly independ.s
ent Of those Of KRAFT (Plf.) occupy.
ing to the latter the relntion, substan.I
italy, of Principal; he was in no just,
sense q fellow servant, nor engaged in
what may properly he denominate j.
common service. z The middle man,
for whose acts the company was held
liable, however, was q foreman of the,
quarry where plaintiff was at work and
where the foreman was personally en-
gagged himself in the work. Again
says the court: ssThe relation between
them was such as brings the case clear
ly within the rule established by re.
peated adjudicatiOns of this court and
now firmly settled in the Jurisprudence
of this state, that when one servant is
placed by his employer in position of
subordination to, and subject to the
orders and control Of another, and such
inferior servant. without fault, and
while in the discharge Of his duties, is
injured by the negligence of the SUI.
periOr servant, the matter is liable for
suchinjury."
R. r. v. Stevens 20 Ohio 4O5, Same
v. Keary 80, st pol. R. R. Y. Deyinny
II Id 1917.
MINNESOTA. Counsel fordef't laid
great stress on the cases cited in IA &
Goth MINI. AS to the first, the court
expressly ignores the vital question in
vOlved in this case, because it says it
is not necessary to pass upon it, and
+ a no M
chiefly upon q, question Of defective
machinery, not certainly a point argu.
ed in this case before me. 3
But this court has passed upon the
question and fully adheres to the rule
laid down by the authorities 1 have
cited. The learned and very distin-
guished judge, in his opinion in the
case of Thompson ct al. v. Drymala l
N. w. r.. No 5 II says .'When such
master entrusts the performance of
this duty (keeping track in repair to
servant or agent, such servant or agent
occupies the place Of the master as re-
spects such performance, and the neg
ligence of such servant or agent in per-
forming the duty is the negligence of
the master himself . .s5~
This case, in my humble judgment, is
a full, clear and strong enunciation of
the law, and is as nearly analogous to
the case at bar as i case can be, being
one of injury to laborer from negli-
gence of a simple section boss. #
FRANCE. ! have heretofore REFER.
ed to the law in England and Scotland.
I will make a reference, just found, to
the French rule on the subject. ''TO
make the commetant responsible for
the negligence of the propose the lat
ter must be acting 'ssOus les Ordres
sous Ia direction ct Ia surveillance du
commetant.' Camp. neg. Sec. II.
The term commetant is given as en-
observation-disclosures overseer.
Superintendent. keeper. one set
over, in charge, entrusted with. Gas
co Fir. Dict. titles cOmmetant ct pre-
pose. " t@.- :
In conclusion I am impelled to &C.
cept the foregoing rule laid down by
justice Berry, vide also Wood M. & S.
& Wharton, the latter giving it thus,
Sec 229. Law of Neg. ''When the
employer leaves everything pertaining
to the work in the hands of a middle
man, reserving to himself no discre.
ton, then such middle mans negli.
gence is the masters negligence for
which the latter is LIABLE" -, a.... .
can not ,acceed to the rule claimed
by def't's counsel 'that all subordi-
mates ara fellow servants and that
there is no superior liability .s.g al.
The employee Ona railroad, toiling in
the burning sun of summer, or facing
the petting blasts of winters storm to
earn an honest living, the sole support
may hap, of widowed mother, wife
and little ones, has rights as well as
the man of wealth enjoying his ease
and comfort in the luxurious palace car.
The life of the one is always at risk
and must be risked for the comfort
and safety of the other. The former
is not a public enemy, but tile rule
cOntended for goes long way to make
him such. Again the latter is assured
of ample compensation in case of in
jury. The former, who goes down to
death in his efforts to save a living
freight or even the property of his EN-.
ployer, caused by the negligence of
another employee, is denied it, denied
the consolation of knowing that his
little ones can obtain from that employ
er the wherewithal to buy bread, be.
cause he is nothing but a fellow SER
want.
How stands the rule in the light of
safety for the travelling public! In the
face Of impending danger, shall the
employees on the train seek first their
own safety? Will the 'ssauve gui peut"
amongst railroad employees tend to
the safety Of the millions who travel
over the lines of railways in the u. S.?
Will the grand and immutable princi.
pie Of justice and equal rights to all,
favors to none, which entities every
person to a certain remedy in the law
for all injuries he may receive, be sus-
tanned by adopting the rule as urged
by counsel? In the interests ofhuman.
ity and justice, and with due regard
to the welfare and safety of the pub.
lie, | respectfully decline so to con-
strue the law for the first time in this
State.
The motion for new trial is over
ruled and q new trial denied.
St. Peter, August 25th, 1870.
E.. ST.. JULIEN Cox, Judge.
tsHeyr'