Peterson v. Whitebreast Coal & Mining Co.

i. damages: penoTdeatsu' It is conceded there is no statute making the defendant liable, but the claim is that a recovery can be had at common law. Nearly twenty years ago it was held in Sullivan v. M. & M. R. R. Co., 11 Iowa, 421, that the principal was not liable for damages sustained by an employe from the negligence of a co-employe in the same general service. This rule as to railway corporations has been changed by statute.

It is insisted, however, that the case above cited is not conclusive as an authority in this, because Watson was boss or foreman having charge and control of the plaintiff and another employe.

It is apparent, however,-that Watson was simply an employe engaged in the same general service as the plaintiff. It is true, he had to a limited extent a control of other employes. It does not appear what was the extent of his .authority, except such as can be inferred from the terms used in defining it. Certain it is that it is not averred he .had authority to discharge other employes, or that the ■defendant was negligent in employing him.

We have, then, for determination the question whether the defendant is liable for the negligence of a co-employe of a different grade, but who is vested with no authority in the general management of the corporation. It makes no difference if the employe receiving the injury is inferior in grade *675to the one by whose negligence the injury was caused. Shearman & Bedfield on Negligence, § 100. In support of this doctrine many authorities ar.e cited. The. same rule is stated in Law of Negligence, by Wharton, § ' 229, where, however, it is’said the rule is otherwise when the employer leaves every thing in the hands of an employe, reserving no discretion to himself.

There is no averment in the petition which brings this case within the exception, and no such presumption can be indulged. We are satisfied that the decided weight of authority is in favor of the ruling below.

It is insisted that Harper v. Ind. & St. L. R. Co., 47 Mo., 567; Lalor v. C., B. & Q. R. Co., 52 Ill., 401; Fleke v. Boston & Albany R. Co., 53 N. Y., 549; and Malone v. Hathway, 64 N. Y., 5, sustain the position of appellant. Even if this were so, and we were to follow such decisions, the effect would be to overrule Sullivan v. M. & M. R. R. Co., before cited, and this, in view of the legislation on this subj ect, we should feel unwilling to do. But counsel are mistaken as to the rule established in the foregoing decisions. The facts in the two last cases show them to be fairly within the exception above stated. In the other two cases the corporation was held liable, but upon an entirely different principle. Counsel also cite Kellogg v. Payne, 21 Iowa, 575; and Callahan v. B. & M. R. R. Co., 23 Iowa, 563. 'Neither of these cases are applicable to the case in hand.

Affirmed.