The maintenance of a safe workplace, including suitable machinery and tools, is the duty of the employer. Moore v. Company, 89 N.H. 332, 335, 197 A. 707, 710 (1938); Wallace v. Railroad, 72 N.H. 504, 513, 57 A. 913, 918 (1904); Jacques v. Company, 66 N.H. 482, 484, 22 A. 552, 553 (1891). Moreover, the employer's duty is nondelegable in that the employer cannot escape liability for breach either by purporting to delegate to another the duty itself, see Moore, supra at 336, 197 A. at 710; Maltais v. Concord, 86 N.H. 211, 215-16, 166 A. 267, 269 (1933); Racette v. Company, 85 N.H. 171, 172, 155 A. 254, 255 (1931); Bilodeau v. Gale Brothers, 83 N.H. 196, 198, 140 A. 172, 173 (1928); Wallace, supra at 514-15, 57 A. at 918-19, or by delegating merely the performance of the duty, see Moore supra; Wallace, supra at 514, 57 A. at 918 (corporate employer is liable for negligence of employee charged with performance of the employer's duty); Jacques supra (corporate employer is liable for breach of safe workplace duty, notwithstanding the delegation of performance to another).
The earlier cases might appear to create some confusion as to just what the law is here in matters relative to such rules. See Wallace v. Railroad, 72 N.H. 504, 513; Minor v. Railroad, 73 N.H. 317; Topore v. Railroad, 78 N.H. 536; Derosier v. Company, 81 N.H. 451; Smith v. Railroad, 87 N.H. 246, 261. However, upon a careful reading, these opinions are not necessarily inconsistent with Descoteau v. Boston Maine R. R., 101 N.H. 271, 274. There our court said: "Promulgation of the rule . . . was evidence of the reasonable necessity for the rule . . . and evidence of habitual disregard of the rule warranted a finding of the defendant's knowledge of the practice and of its negligence in the performance of its duty to enforce the rule."
The responsibility of the master is not determined by a difference in rank between the servant injured and the one in fault, or by the fact that the servant guilty of negligence is foreman or in control of others, but upon the nature of the act complained of; whether it is an act of service, or an attempted performance of a non-delegable duty of the master. Wallace v. Railroad, 72 N.H. 504; Galvin v. Pierce, 72 N.H. 79; McLaine v. Company, 71 N.H. 294. The principle involved in determining whether the in question is one of service or mastership is not "derived from exact or ingenious definitions of the words `place,' `tools,' or `appliances,' however convenient and useful they may be in a particular case, but from considerations of the requirements of ordinary and reasonable care on the part of both the employer and the employee. If as a matter of fact a particular course of conduct on the part of the master toward his servant is unreasonable when measured by the conduct of men in general engaged in similar occupations, he cannot shield himself as a matter of law from the consequences of such conduct by a resort to verbal distinctions, which oftener serve to obscure than to elucidate legal principles." English v. Amidon, 72 N.H. 301, 303, 304.
Under the circumstances in this case, the word "Should" was not meant to be mandatory, but indicated desirability or preference. See Texas Pacific R. Co. v. Consolidated Companies (1934), 180 La. 180, 156 So. 215; Wallace v. Boston Maine R. (1904), 72 N.H. 504, 57 A. 913. Although George testified he did not know of the driveway restriction until March 30th, he stated that he called Sailer a number of times after the contract was signed to see whether he had obtained " permission to put a full driveway in over the entire 100 feet of frontage."
This fact, if established, precluded the defense of assumption of risk, for the risks assumed by a servant do not include those caused by the personal misconduct of the master. Wallace v. Railroad, 72 N.H. 504, 514 and cases cited; 4 Labatt, Master Servant, ss. 1479, 1480. "There is no implied contract growing out of the contract of service that the servant shall take the risk of the master's negligence, or that the latter shall be exempt from responsibility to the servant for his own personal wrongs." Anthony v. Leeret, 105 N.Y. 591, 599. This principle also furnishes the answer to the ingenious argument of counsel that, since the plaintiff and the defendant were working together on the job, they were fellow-servants and that the defendant is not liable in his capacity of master for his negligence as a fellow-servant.
A like result is reached if it is conceded that it was negligent to fasten the cable to the chain under any circumstances. A witness who had worked in the defendant's coal yard for twelve years testified that he had never seen a car moved in that manner before, and while another witness, whose understanding of English was extremely limited, answered affirmatively an interrogative statement to the effect that he always hooked the cable to the chain whenever he found a car equipped with one, there is no evidence that this had occurred often enough to charge the defendant with knowledge of the practice. Wallace v. Railroad, 72 N.H. 504, 507, 508, 517. See also Cunningham v. Spaulding, 80 N.H. 335; Sanborn v. Railroad, 76 N.H. 523, 529; Klineintie v. Company, 74 N.H. 276; St. Pierre v. Foster, 74 N.H. 4; Smith v. Railroad, supra.
The negligence of servants whose work is to maintain conditions of safety is not within the application of the fellow servant rule. Jaques v. Company, 66 N.H. 482; Wallace v. Railroad, 72 N.H. 504, 513, 514. The negligence of a servant for the consequences of which to a fellow servant the master is not liable is limited to conduct in the execution of work as a matter of service rather than agency.
" McLaine v. Company, supra, 294, 295. "The responsibility of the master is not determined by a difference in rank between the servant injured and the one in fault, or by the fact that the servant guilty of negligence is foreman or in control of others, but upon the nature of the act complained of; whether it is an act of service, or an attempted performance of a non-delegable duty of the master. Wallace v. Railroad, 72 N.H. 504; Galvin v. Pierce, 72 N.H. 79; McLaine v. Company, 71 N.H. 294. The principle involved in determining whether the act in question is one of service or mastership is not `derived from exact or ingenious definitions of the words "place," "tools," or "appliances," however convenient and useful they may be in a particular case, but from considerations of the requirements of ordinary and reasonable care on the part of both the employer and the employee. If as a matter of fact a particular course of conduct on the part of the master toward his servant is unreasonable when measured by the conduct of men in general engaged in similar occupations, he cannot shield himself as a matter of law from the consequences of such conduct by a resort to verbal distinctions, which oftener serve to obscure than to elucidate legal principles.'" Hilton v. Railroad, 73 N.H. 116, 119. "The question is one as to the character of the order or act, whether it is one which is given or performed as an order or act
A violation of the rule can be found to be negligent conduct on the strength of this admission. The defendant is not in a position to assert that the rule it has made is not necessary, or that a disregard of it may not be found to be negligence. Wallace v. Railroad, 72 N.H. 504, 512. But the finding of negligence because of such admission cannot go beyond what is admitted.
The master cannot be permitted to delegate this duty to an agent and escape liability for its negligent performance. In Wallace v. Boston Maine R.R. Co., 72 N.H. 504, the court held that a train dispatcher charged with the duty of directing the movement of trains over the defendant's railroad is not a fellow servant of a brakeman on one of the defendant's trains and said: "The arranging for the running of trains generally is especially a master's function. It requires the exercise of the master's authority and discretion; it differs from the act of a conductor in taking his particular train over the road as the act of the author of a business, in instituting and directing it, differs from the act of a servant in executing its detail. It is a supreme act as distinguished from a subordinate act.