## Facts

- Nicholas Farwell was employed by the Boston & Worcester Rail Road Corporation as a locomotive engineer operating trains between Boston and Worcester.
- On October 30, 1837, Farwell’s passenger train derailed at a switch that had been left in the wrong position.
- The switch was under the care of Whitcomb, another railroad employee working as a switch tender.
- The derailment threw Farwell to the ground; a wheel crushed his right hand, destroying it.
- Farwell sued the railroad in an action on the case, alleging the company was negligent through its servants in managing the switch.
- The case was submitted on agreed facts with a stipulation: if the railroad was not legally liable to a servant for injuries caused by another servant in the same employment, Farwell would be nonsuited; otherwise, the case would proceed to a jury.

## Issues

1. Whether an employer is liable to an employee for injuries caused by the negligence of a co-employee when both are engaged in the same general employment.
2. Whether, given due care by the employer in selecting competent employees and providing suitable equipment, the risk of co-employee negligence is borne by the injured employee as an ordinary risk of the service.

## Decision

- The Supreme Judicial Court of Massachusetts held the railroad was not liable to Farwell for injuries caused by Whitcomb’s negligence while both were engaged in the same service.
- The court reasoned that, as between employer and employee, the ordinary risks of the employment include the risk of negligence by competent fellow servants.
- Because the agreed facts indicated due care in the selection of the co-employee and the furnishing of suitable means to perform the work, the claim failed under the parties’ stipulation and judgment was for the defendant.

## Legal Principles

- When an employer exercises due care in selecting competent employees and provides suitable machinery and tools, the employer is not answerable to one employee for injuries caused by the negligence of another employee engaged in the same general service (fellow-servant rule).
- Respondeat superior, which makes a master liable to strangers for a servant’s negligence in the course of employment, does not govern suits by a servant against the master for injuries arising within the employment relationship.
- The risks allocated by the employment relationship are determined by the express or implied employment contract; the employee is taken to assume the ordinary risks of the service in exchange for wages.
- An employer remains liable for injuries caused by the employer’s own negligence, including negligent hiring/retention of unfit employees or failure to provide suitable and safe equipment.

## Conclusion

The court denied recovery to an engineer injured by a switch tender’s negligence, establishing that an employee generally assumes the ordinary risk of co-employee negligence in the same employment when the employer has used due care in hiring and in providing safe instrumentalities.


Farwell v. Bos. & Worcester R.R. Corp., 45 Mass. (4 Met.) 49 (1842)