McGinn v. McCormick

Citations

• 109 La. 396
• 33 So. 382
• 1902 La. LEXIS 153

Syllabus

<p>INJURY TO EMPLOYE — NEGLIGENCE OF FELLOW SERVANT — ASSUMPTION OF RISK — DEFECTIVE APPLIANCES — BREACH OF EMPLOYER’S RULES.</p> <p>1. The doctrine of the nonliability of the master for injuries inflicted upon one of his servants by the negligence of a fellow servant is predicated in part upon the presumed assumption by each servant of the risk to be incurred from the negligence of his fellow servants, and in part, it is said, upon considerations of public policy; but such a foundation affords no support for the proposition that an injured servant is to be considered as having assumed the risk to' be incurred from the negligence of the master, or from the negligence of the master combined with that of a fellow servant. Contributory negligence, to defeat the right of action in such a case, must be that of the party injured.</p> <p>2. Where, in consequence of a defective spring upon a hand car furnished by a railroad company to a section gang, the men in charge of the car are unable to prevent it from running into another car, which has been stopped somewhat suddenly by an obstruction, on the track, and a man upon the other car is injured without negligence on his part, it is not a good defense for the company, as against the right of recovery of the man so' injured, that the foreman of the colliding car, even assuming him to have been the fellow servant of the other, knew of the defect in the spring, and was guilty of negligence in following the other car too -closely, or in not observing as quickly as he should that it was slowing down. The accident is held to have resulted from the combined negligence of the company and its foreman.</p> <p>3. The fact that the injured man was going to dinner from a point a mile and a half away, though there was a rule requiring the men to carry their dinners when at work more than a mile from the section house, has no material bearing upon the right of recovery; the purpose of the rule being to secure the time and services of the