Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1890-02-14

depart from them would tend to un
settle what has, by " immemorial ant
universal usage" been understood to b,
settled. The common law grew will
society, not ahead OF it. AS society
became more complex, and new de
mands were made upon the law, by
reason of new circumstances, the
courts, originally in England, out of the
storehouse OF reason and good sense
declared the common law" But
since courts have had an existence in
America they have never hesitated to
take upon themselves the responsible
ity of saying what is the common law
Notwithstanding current English de-
cisions, especially upon questions in
vol,ing new conditions. Therefore we
have the " common law as declared
by the highest courts of this, that and
the other States, and by the courts OF
the United States, sometimes varying
in each. And We understand by sec
ton |, of the code, that where there
are no governing provisions of the
written laws, the courts OF the late
Territory and of this State, are, in all
matters coming before them, to en-
deavor to administer justice according
to the promptings of reason and COM
mon sense, which are the cardinal
principles OF the common law; but not
that the decisions of English courts
are to be taken blindly and without
inquiry as to their reasoning or appli-
cation to the circumstances. We have
been led to these remarks because OF
the fact that this question of in
juries by servants of the same master
negligently inflicted upon each other,
has given rise to extensive discussion
AID wide divergence OF decision in
both English and American courts.
Up to certain point, undoubtedly the
common law rule was and is that the
master is not liable if one of his SER
wants negligently Injuries another. 1t
was indirectly stated so to be in Priest
ly VS.. Foster ,, NJ. and W. l, in 1887
it was first distinctly announced in
Murray VS.. South Carolina X. X. Co. l,
Mcmillan 1856, in 1S41, and was re-
announced in Massachusetts,, in 1S42
in Farwell VS.. Boston & Worcester X.
II. Co., 4, Metcalf, 40. t..
The first positive announcement oi
the rule. in England was in Hutchin-
son VS.. York, &c., Ry. Co, 5. Exchequer
r., 343. The theory of the South
Carolina case was that each of the
servants, in his separate department
represented the principal, and that
they were engaged in joint under
taking. In Massachusetts, the ground
Of the decision was that by refusing a
resort to the common employer, the
safety OF each employe would be more
efiectually secured, by reason of the
greater skill and care with which they
would conduct their several operations,
Hutchinson VS.. York, &c, Ry., seems
to have rested upon the conclusion oi
the court that the principle OF holding
the master liable would "carry us to
an alarming extent" The English
cases down to this time, except rs
they have been restricted by statute,
have been kept well up to the general
rule, in which they have rather fol-
lowed, than been followed by many
American cases, notably those decided
in Massachusetts,. See Holden vs..
Fitchburgh X. X. Co., 129 Mass, 26S.
But almost contemporaneously with
the assertion OF the general rule OF
the exemption of the master, other
American courts refuse adherence to
it as a universal rule. The rise and
progress. OF great railroad corporations,
operating over long lines OF road, with
hundreds of employees, from president
down, caused closer inspection of the
real relations of the men, who, al
though they were employed and paid
by the same master, were often so
widely separated in their spheres of
duty that reason seemed to call for
some substantial modification of the
decisions as to what the rule really
was when applied to cases where there
was so large a delegation of the au-
thontv OF the master to the negligent
servant that the master could be said
to be present and acting only in the
person of the servant.
The courts of last resort of many of
the States, and the Supreme Court of
the United States, have given their
adherence to this view, and according
to their decision the common law OF
such cases is that the rule of exemp-
ton to the master only applies when
the, negligent servant and the servant
injured are in a common employ
ment" The leading authority upon
this subject, for this case at least, is
the Supreme Court OF the United
States, which in Chicago & Milwaukee
Railroad VS.. Ross, liz U. S., 377, said !:
"There is, in our judgment, a clear
distinction to be made, in their rela-
tions to their common principal, be-
tween servants of a corporation, exer-
cising no supervision over others en-
gagged with them in the same employ
ment, and agents OF the corporation
clothed with the control and manage
ment Of a distinct department, in
which their duty is entirely that of di.
rection and superintendent; and
held railroad conductor, who neg
lected to inform his engineer of an or
der to wait at station ahead for O
train going in the opposite direction
whereby a collision occurred, not to bt
the fellow servant OF the engineer
Other courts have applied the princi
\ Mo 70 far morn cop,plioatoJ oaso, 49,