49 NY 521 (1871)
The “fellow servant rule” was a common law doctrine which held that employers were not liable for injuries to their employees caused by the negligence of their co-workers. With the rise of the industrial revolution, the fellow servant rule was gradually eroded as courts and legislatures came to recognize that it produced harsh and unjust results for the increasing number of workers who were injured, through no fault of their own, by the inherently dangerous nature of industrial workplaces such as railroads and factories. Laning was an early example of this trend.
The Plaintiff, a carpenter employed by the defendant railroad, was working with the defendant’s foreman, Westman, who was known to be an alcoholic. Westman was intoxicated at the time that he ordered two employees to build a scaffold to be used by the plaintiff in his work. The workers selected to build the scaffold were not competent for the job and they selected materials of poor quality and improper size. The scaffold collapsed from its defects and the plaintiff was seriously injured. A jury found the defendant liable for negligence and awarded $10,000 in damages to the plaintiff. The defendant appealed.
Judge Folger, writing for a majority of the Court of Appeals, concluded that the case fell outside the purview of the fellow servant doctrine. Although “[a] master is not liable to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow-servant engaged in the same general business,” the law also recognizes that there is an implied contract between master and servant by which the employer is obligated to use reasonable care to provide safe machinery, materials and appliances necessary for the employee’s proposed work, and also to employ skillful and competent fellow employees. Thus, the master can still be liable to his servant “for his [the master’s] own personal negligence . . . in the mismanagement of the master’s affairs in the selection and employment of incompetent and unfit agents and servants, or the furnishing of improper and unsafe machinery, implements, facilities or materials for the use or labor of the servant.”
In the majority’s view, the fellow servant doctrine could not be invoked by the railroad because it had breached its obligation to provide the plaintiff with a competent fellow worker and a safe workplace. The defendant had continued to employ an individual whose “evil habits” had previously been brought to the attention of the railroad’s supervisors.
The duty of the master to his servant is to use reasonable care to provide and employ none but competent and skillful servants, and to discharge from his service on notice thereof any who fail to continue such. And applying this rule to the case in hand, we are of the opinion that the defendant was negligent towards the plaintiff, in retaining Westman in its service, after his habit of drinking to drunkenness was known to Coleby, its general agent for hiring and discharging men of the class of Westman.
As to the argument that the plaintiff should not recover because of his contributory negligence in continuing to work with someone he knew to have a drinking problem, the court pointed to case law recognizing an exception to contributory negligence where the servant, “on a temporary defect arising, is induced by the master, after the defect has been brought to the knowledge of the latter, to continue to perform his service under promise that the defect shall be remedied.” The jury was entitled to find for the plaintiff on this point since he had testified that the defendant’s supervisor had induced him to continue working with the foreman by stating that the foreman would be discharged if his performance did not improve.
The sole dissenter, Judge Allen, did not issue a written opinion in the case.