We have already pointed out the recognition which the California courts have given to the doctrine of vice-principal in cases of the negligence of an employee in the discharge of duties which are a part of the legal obligations of the employer. When it is a question of furnishing suitable appliances, or a safe place of work, or of giving information of the dangers incurred in the business, then the person discharging such duties is not a fellow-servant, but acts for the principal."8 This is true even in the case of an employee who in all other respects holds a subordinate position.

The California courts refused to extend the application of this doctrine of vice-principal so that it would include all employees who had the right of direction or control. They repeatedly held that a foreman was the fellow-servant of the men under his control. In cases where the neglect of the foreman to give notice of blasting, or to close an open switch, or to put proper timbers in a tunnel, resulted in the death or serious injury of

68 If the act was one which it was the duty of the employer to perform towards its servants, and one of them negligently performed it to the injury of another servant in the same common employment, then the offending servant in the performance of such duty acted as the representative or agent of his employer, for which the employer is responsible. Was then the act or omission which caused the injury a personal duty which the defendant corporation owed to the deceased while he was engaged in the performance of his duties as its employee? If it was, then the deceased was not at fault, then the corporate defendant is liable, otherwise not." (Daves v. Southern Pac. Co., 98 Cal. 24.)

A carpenter who makes the scaffold used by his fellow-workmen is not their fellow-servant in so far as the construction of the scaffold is conconcerned, but represents his employer who is liable for negligence in the making of such a scaffold. (McNamara v. McDonough, 102 Cal. 582. Compare Noyes v. Wood, 102 Cal. 393, a case where the court refused to allow recovery for the negligence of a foreman of painters in construction of a scaffold.)

"It must be taken as absolutely settled in this state that it is not the grade of service which fixes the master's responsibility in case of accident. It is the character of the act. That is to say, if it be an act the duty for the performance of which belongs in law to the master, if the performance be delegated to the least of his servants or to the greatest. in either case, and in any case, the master is responsible, unless that act be performed with due care; if the act be one which it was the duty of the employer to perform, and one of the servants negligently performs it to the injury of another servant in the same common employment, then the offending servant in the performance of this duty acts as the representative or agent of his employer, and the employer is responsible." (Skelton v. Pac. Lumber Co., 140 Cal. 511.)

.

See also Congrave v. Southern Pac. Co., 88 Cal. 369; Elledge v. National and O. R. Co., 100 Cal. 291; Nixon v. Selby S. & L. Co., 102 Cal. 458; Beeson v. Green Mt. G. M. Co., 57 Cal. 20.

the workmen under his control, the Supreme Court refused to allow damages, on the ground that the law permitted no recovery for accidents due to the negligence of a fellow-servant."s

69

GREAT EXTENT OF APPLICATION OF THE FELLOW-SERVANT

RULINGS.

The refusal to hold the employer liable for injuries due to the negligence of a fellow-servant has also worked great hardships in many cases in which men have been injured through the negligence of others employed in a different line of work, or in another department of the same general business. The laborer shoveling snow from the railroad track was held to be the fellow-servant of the conductor of the train that ran over him;70 the miners working in the bottom of the shaft were fellow-servants of the careless engineer who let the buckets or timbers fall upon them; the man hired to repair an elevator shaft was the fellow-servant of the heedless operator who started the elevator without warning;72 the ignorant child was the fellow-servant of the thoughtless workman who sent him to dangerous and unaccustomed work;73 the employee in the steward's department was the fellow-servant of the ship's mate; as the industries of the state have grown in extent and complexity of organization, the workmen have multiplied their associates, until in many instances they are exposed to accidents due to the negligence of one or more of an army of fellow-servants, whose characters and abilities are necessarily unknown. The timeworn legal fiction that justifies exemption from liability in such cases by the claim that the workmen know the conditions under which their work must be done, and have voluntarily assumed the risks, has no justification in the facts, when applied to the vast, highly organized, industries of modern times.

74

69 Stephens v. Doe, 73 Cal. 26; Donovan v. Ferris, 128 Cal. 48; Daves v. S. P. Co., 98 Cal. 19.

70 Fagundes v. Central Pac. Co., 79 Cal. 97.

71 Collier v. Steinhart, 51 Cal. 116; Trewaltha v. Buchanan G. M. & M. Co., 96 Cal. 494.

72 Mann v. O'Sullivan, 126 Cal. 61.

73 Fisk v. Cen. Pac. R. R. Co., 72 Cal. 38.

74 Livingston v. Kodiak P. Co., 103 Cal. 258.

i

1

DECISIONS WHERE KNOWLEDGE OF THE DANGER PREVENTED
RECOVERY OF DAMAGES.

Another ground on which the courts have frequently refused to permit the recovery of damages is found in the ruling that, where the servant knows the danger, and yet continues to incur the risk of accident, the master is not liable for injuries.75 This is based on the code provision declaring that "an employer is not bound to indemnify his employee for losses suffered by the latter in consequences of the ordinary risks of the business. ''76

In cases where the danger is not necessarily incident to the business, but due to defects in the appliances or other conditions that could have been remedied by the employer, the California courts have shown a growing reluctance to enforce this rule that knowledge of danger debars from recovery. In a number of recent decisions, the Supreme Court has held that the injured workman can recover damages, if he was not fully aware of the personal risks that he ran."

75 Where a party works with, or in the vicinity of a piece of machinery insufficient for the purposes for which it is employed, or for any reason unsafe, with a knowledge or means of knowledge of its condition, he takes the risk incident to the employment in which he is thus engaged, and cannot maintain an action for injuries sustained.' (McGlynn v. Brodie, 31 Cal. 379.)

An employee accepting employment, knowing of certain defects in the machinery, knowing the extent of danger therefrom, and knowing that the complement of men to perform the work was insufficient, and of the danger therefrom, accepts the risks of such employment, and cannot recover for injuries occurring thereby. (Long v. Coronado R. Co., 96 Cal. 273.)

Limberg v. Glenwood L. Co., 127 Cal. 603. Murdock v. Oakland R. L. & H. E. R. Co., 128 Cal. 27.

76 Civil Code, Sec. 1970.

77 Thus in 1880 it was held in the case of an engineer whose death was due to the failure of the railroad company to fence its tracks, that his knowledge of the danger prevented recovery. (Sweeney v. Central Pac.

R. R. Co., 57 Cal. 18.) Nine years later this decision was overruled in a similar case. (Magee v. N. Pac. Co., 78 Cal. 437.)

To defeat the servant's right of recovery he must not only be aware of the defect in the appliance, but know and appreciate the risks and dangers resulting or likely to follow from such defects; although he is in no better position if he is ignorant of the defects and the risks and dangers by reason of his failure to exercise ordinary common sense and prudence in the examination of the instruments and appliances placed in his hands with which to labor." (Alexander v. Cent. L. & M. Co., 104 Cal. 539.)

The only exception to the rule that the servant, when aware of the danger he runs in using defective appliance, takes the risk thereof, is

Even when the employee is fully aware of all the risks incurred by continuing work under unsafe conditions, he is not always obliged to leave his place immediately on discovery of such dangers. He must notify his employer of the defects, and on receiving assurance that the matter will be remedied, may wait a reasonable time for the fulfillment of such promises, without forfeiting his right to recover damages for injuries.78 It is important that the servant give this notice of all defects which he may discover in the appliances, for if the employer is not aware of the unsafe conditions, and could not have learned

where he was not aware of the danger incident to the defect. (Limberg v. Glenwood L. Co., 127 Cal. 600.)

"It has been often said that the master is not liable for defects in such things to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. The master has no right to assume that the servant will use such means of knowledge, because it is not part of the duty of the servant to inquire into the sufficiency of these things. The servant has a right to rely on the master's inquiry, because it is the master's duty so to inquire; and the servant may justly assume that all these things are fit and suitable for the use which he is directed to make of them. The true definition is, that when circumstances make it the duty of the servant to inquire, it is contributory negligence on his part not to inquire. A servant is chargeable with actual notice as to matters concerning which it was his duty to inquire. (Shearman and Redfield on Negligence, Sec. 287, cited in Magee v. N. P. C. R. R. Co., 78 Cal. 437.)

"And when it is claimed that the injured employee was himself guilty of such negligence as to bar him from recovering damages for his injuries, it must appear that he not only knew, or had the means of knowledge, of the unsafeness of the place, appliance, or machinery, but also that he knew, or ought to have known, of the danger to which he was himself personally exposed." (Mullen v. Cal. Horeshoe Co., 105 Cal. 83. See also Mansfield v. Eagle Box Co., 136 Cal. 625; Lee v. S. P. R. R. Co., 101 Cal. 122; Ingerman v. Moore, 90 Cal. 410; Ryan v. Los Angeles etc. Co., 112 Cal. 244; Verdelli v. Gray's Harbor etc. Co., 115 Cal. 517.)

78 Where the employee upon discovery of defect in appliance or place of work at once makes complaint to his employer, and has been promised that it should be remedied, he will be justified in continuing work for a reasonable time in the expectation that the promise will be kept. (Murdock v. Oakland, S. L. & H. E. R. Co., 128 Cal. 26.) If the exercise of ordinary prudence demands that the employee stop work at once upon discovering defect or danger in apparatus or place of work, he must stop, but if otherwise, he should make complaint to the master of defect, and for a reasonable time thereafter cannot be held as matter of law, to have assumed risk. (Ibid., p. 27.)

Mere continuance of the servant in his work in the face of known danger only raises a question for the jury (as to whether he was guilty of contributory negligence in so doing). Magee v. North Pac. C. R. Co., 78 Cal. 436.

Where a servant makes complaint to his master of defect in appliances and the master remains silent, and the servant continues to use the defective appliances beyond a reasonable time thereafter, he assumes the risks incident to the defects. (Limberg v. Glenwood L. Co., 127 Cal. 601.)

of them by the exercise of ordinary care, then he is not liable for any injury that may result.79

DAMAGES ALLOWED FOR INJURIES OR DEATH.

The first California law providing for the payment of damages for death or injury due to negligence was passed in 1862, and was intended chiefly for the protection of pedestrians from defective sidewalks or wharves.80 This act was embodied in the Code of Civil Procedure of 1872.81 Two years later the law was made more general in its application by striking out the specific references to sidewalks. It was also brought into closer conformity to the law in other parts of the country by the omission of the part allowing the jury to fix exemplary damages, or damages that would serve as a warning or punishment, in addition to those covering the pecuniary loss of the plaintiff.82

79 There have been several cases where judgment has been given for the defendant on the ground that the plaintiff had the better opportunity to learn of the danger. (McGlynn v. Brodie, 31 Cal. 382, 385. Thompson v. Cal. Const. Co., 148 Cal. 35.)

"The master is not liable for dangers existing in the place where the servant is assigned to work, unless the master knows of the dangers or defects, or might have known thereof if he used ordinary care or skill to ascertain them. This rule applies with greater force in cases where the conditions surrounding the place of work are constantly changing, owing to the progress of the work. The rule is further modified by the proposition that where the servant is under the same obligation as the master is to look for dangers in the place of work, and has equal facilities for ascertaining them, and under these conditions continues the work, the master is not liable for any injury caused by the dangers thus existing, unless in some manner he urges or coerces the servant to continue the work after he himself is aware, or should have been aware, of the danger. "" (Thompson v. Cal. Cons. Co., 148 Cal. 39-40.)

80 Statutes of 1862, p. 447-8.

81"When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or when the. death of a person is caused by an injury received in falling through any opening or defective place in any sidewalk, street, alley, square, or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was, at the time of the injury, to have kept in repair such sidewalk or other place. In every such action the jury may give such damages, pecuniary or exemplary, as under all the circumstances of the case, may to them seem just." 377.) (C. C. P. (1872),

82 The amended section which has been the law since 1874 reads: "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this