McLean v. Blue Point Gravel Mining Co.

By the Court: Section 1970 of the Civil Code (which “ establishes the law of this State respecting the subjects to which it relates,” —Id. Sec. 4.) provides as follows:

“ Sec. 1970. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risk of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he .has neglected to use ordinary care in the selection of the- culpable employee.”

The injury to the plaintiff was caused by the negligence of Regan, the foreman of defendant, who was a fellow-servant with the plaintiff—“another person employed by the same employer in the same general business,” that is, the business of working the mine of the defendant—Regan being in the blasting, and the plaintiff in the hydraulic department of the ‘ ‘generalbusiness.” The section of the Civil Code already recited declares that to such,a case the rule of respondeat superior shall not apply, unless there has been want of ordinary care upon the part of the defendant in the selection [258]of ihe culpable employee. But the fact was, as found by the court below, that there had been no such want of ordinary care on the part of the defendant; Kegan, the “foreman,” being found to be “skillful, competent,” and a proper person to perform the duties with which he was charged. “The law of this State respecting this subject,” as set forth in the Code referred to, recognizes no distinction growing out of the grades of employment of the respective employees; nor does it give any effect to the circumstance that the fellow-servant, through whose negligence the injury came, was the superior of the plaintiff in the general service in which they were, in common, engaged, and the alleged distinction in this respect insisted upon by the appellant’s counsel, founded, as he claims, on the general principles of law and the adjudged cases, requires no examination at our hands. (Collier v. Steinhart, ante, p. 116.)

Order affirmed,