Carter v. McDermott

29 App. D.C. 145, 1907 U.S. App. LEXIS 5439

• Court: District of Columbia Court of Appeals
• Decided: March 5, 1907
• Docket: No. 1712
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The first and second assignments of error may be considered together, as one specifies as error the action of the court in entering judgment for the defendant on the special verdict of the jury, and the other specifies as error the failure of the court to enter judgment for the plaintiff on that verdict.

Counsel for appellee frankly agree that ordinary care required the presence of a light on the rear of its cars after sundown, but they contend that inasmuch as the company provided such lights for this run, and placed them on the curb at 4th and T streets, and promulgated a rule requiring conductors at that point to equip their cars with such lights, the company was not liable for an injury resulting to a fellow servant by the negligence or omission of a conductor in failing to thus equip his car.

Of course, the master is absolved from responsibility to a servant for injuries resulting from the ordinary risks of his employment, including the negligence of a fellow servant, but the master must exercise reasonable care in the selection of his servants, and must provide reasonably safe machinery, appliances, and equipment, and keep the same in proper repair; and if he fails in either respect, and the servant is injured because of such failure, the master will be liable. In other words, the servant assumes the natural and reasonable risks incident to the particular service in which he is engaged, but he does not assume the risks of the master’s negligence. “It is the duty of the employer,” said Mr. Justice Field in Northern P. R. Co. v. Herbert, 116 U. S. 647, 29 L. ed. 758, 6 Sup. Ct. Rep. 590, “to select and retain servants who are fitted and competent for tin service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred so as to exonerate him from such liability.”

Mr. Justice Brewer, in Baltimore & O. R. Co. v. Baugh, 149 U. S. 386, 37 L. ed. 780, 10 Sup. Ct. Rep. 914, thus stated the rule: “Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits, the master who provides the place, the tools, and the machinery owes a positive duty to his employee in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety; and it matters not to the employee by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employee, or the latter’s right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore it will be seen that the question turns rather on the character of the act than on the relations of the employees to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor.” See, also, Union P. R. Co. v. O’Brien, 161 U. S. 457, 40 L. ed. 770, 16 Sup. Ct. Rep. 618; Northern P. R. Co. v. Peterson, 162 U. S. 353, 40 L. ed. 997, 16 Sup. Ct. Rep. 843.

This case therefore turns on the determination of the question whether the duty of actually equipping its cars with red lights for use after dark was an imperative duty resting upon the company, a duty which it could not delegate so as to escape liability for injuries suffered by its servants by reason of the omission or neglect on the part of the servant or agent intrusted therewith. At the outset we must have in mind the important and, perhaps, the controlling fact that the appellee is a common carrier of passengers, and as such is charged with grave responsibility.

In the argument at bar it was earnestly contended by counsel for appellant that the court below erred in declining to admit in evidence a police regulation in force in the District of Columbia at the time of the accident, providing that “every street car in motion after sundown shall have two lights, one displayed at each end thereof;” but there is no assignment of error predicated upon this ruling of the court, and we therefore lay it out of view with the observation that the accident having occurred in Maryland, and the regulation having no extraterritorial effect, the right of the appellant to recover must be governed by the lex loci, and not by the lex fori. Under the common law in force in Maryland the safety of those in charge of electric cars and the safety of passengers required such an equipment, and the jury so found. The regulation in force in the District is simply argumentative on the question of the importance of such a precaution against accident, and may properly be considered by the court in determining the character and measure of the company’s responsibility.

In the case of Flike v. Boston & A. R. Co. 53 N. Y. 550, 13 Am. Rep. 545, the accident occurred because there was an insufficient number of brakemen upon the train. The company provided a head conductor, whose duty it was to direct other conductors and to assign brakemen to go with the several trains. After receiving instructions from the head conductor, trains were started by and were under the control of their own conductors. The head conductor assigned a proper number of brakemen to go with this particular train, but one overslept himself and failed to go, and the train was started without him and without notice having been given to the head conductor of the absence of this brakeman. The train broke in two, and eleven cars, upon which there was only one brakeman, ran back and collided with plaintiff’s train, causing the injury. It was held that an imperative duty rested upon the company to actually equip its trains with sufficient help, and that it was negligence to start a train without such help. The court said: “It was clearly the duty of the corporation, in making up and despatching the advance train, to supply it with suitable machinery and sufficient help for the business and journey which it was about to undertake; and if there was any want of care in these respects, which caused the injury, it is liable. * * * The hiring of a third brakeman was only one of the steps proper to be taken to discharge the principal’s duty, which was to' supply with sufficient help and machinery and properly despatch the train in question, and this duty remained to be performed although the hired brakeman failed to wake up in time, or was sick, or failed to appear for any other reason. It was negligent for the company to start the train without sufficient help. The acts of Rockefeller cannot be divided up, and a part of them regarded as those of the company, and the other part as those of a coservant merely, for the obvious reason that all his acts constituted but a single duty. His acts are indivisible, and the attempt to create a distinction in their character would involve a refinement in favor of corporate immunity not warranted by reason or authority. As well might the company be relieved if the train was started without an engineer, or without brakes, or with a defective engine.” This case was cited with approval by the Supreme Court of the United States in Northern P. R. Co. v. Herbert, 116 U. S. 649, 29 L. ed. 759, 6 Sup. Ct. Rep. 590, the court, in referring to the case, saying: “There it appeared that the accident which caused the injury complained of was in consequence of an insufficient number of brakemen on the cars of the company. The fact that the company had an agent whose business it was to make up the trains, to hire and station the brakemen, and to prepare and despatch the trains, did not relieve it from liability.” This and the later case of Booth against the same company, growing out of the same accident, and reported in 73 N. Y. 38, 29 Am. Rep. 97, were cited by Mr. Justice McKenna in Deserant v. Cerillos Coal R. Co. 178 U. S. 420, 44 L. ed. 1133, 20 Sup. Ct. Rep. 967, wherein he said: “It is undoubtedly the master’s duty to furnish safe appliances and safe working places, and if the neglect of this duty concurs with that of the negligence of a fellow servant, the master has been held to be liable.”

Collins v. St. Paul & S. C. R. Co. 30 Minn. 31, 14 N. W. 60, was an action to recover damages for an injury to plaintiff’s intestate, Collins, who was employed by the defendant in repairing its track, and who was struck by a locomotive of the defendant. It appeared that the headlight in front of the locomotive was not lighted at the time of the accident, and this was alleged as negligence. The court said: “The negligent omission to provide a headlight (or lantern) upon the locomotive, — it appearing that a headlight is necessary to the safe running of a train in the dark, — would have been the negligence of the defendant, as between it and its servants, for which it would have been liable to them for injuries caused by it. Drymala v. Thompson, 26 Minn. 40, 1 N. W. 255. There was, however, no evidence that there was not a headlight on the locomotive; on the contrary, the evidence was full and satisfactory that it had a headlight. There was evidence enough that it was not lighted at the time. That was due to the neglect of those in charge of the train, — fellow servants of Collins, — for whose negligence the defendant would not be liable to him or his representatives.” It will be observed that the court predicated its ruling solely upon the fact that the headlight was “on the locomotive” at the time of the accident, and expressly stated that “the negligent omission to provide a headlight * * upon the locomotive * * * would have been the negligence of the defendant, as between it and its servants.”

In Kelly v. New Haven S. B. Co. 74 Conn. 343, 57 L.R.A. 494, 92 Am. St. Rep. 220, 50 Atl. 871, the accident was caused by the failure of the company’s agent to use a fender in unloading a boat. It appeared that the company “had furnished a sufficient fender, and a place in which it could be used, and, it Jcept the fender in a proper and convenient place at all times ready for use.” The court held that the company was not liable for the failure of the crew to use the fender. In this case, as in the Minnesota case, the appliance had been furnished by the master, and was in a proper place and ready for use when necessary.

A case still more in point is the case of Whittlesey v. New York, N. H. & H. R. Co. 77 Conn. 100, 107 Am. St. Rep. 21, 58 Atl. 459. In that case action was brought for the death of a section hand, caused by a collision of a freight train with a hand car on which the deceased was riding. The foreman in charge of the hand car negligently failed to send forward a signal flag to apprise approaching trains of the presence of the men on the track. The court said: “At the time of the collision these section hands, including Sullivan and Dwyer, were engaged in the work of keeping a portion of the defendant’s roadbed in repair. * * * To perform it with reasonable safety required a signal flag to be sent ahead of the hand car. It was the duty of the railroad company to exercise reasonable care to provide these men with suitable means and appliances for so signaling approaching trains. Having performed that duty, nothing further was required of the defendant in order to render the place where the men were working reasonably safe. It then became the duty of the men to use the means provided for the safe and proper performance of their work. The act of carrying forward a signal flag was one which the men were competent to perform, and it was the duty of Dwyer to order it to be done, just as it was his duty to direct the performance of other details of the work in which they were all engaged. The defendant provided a suitable hand car properly equipped with signal flags and a sufficient number of competent men for the proper performance of the work. Having done this, it was-not required to see that the flag was used when necessary. That was a duty of the servants, the negligent failure of Dwyer to-perform which was the negligence of a fellow servant of Sullivan, for the consequences of which the defendant is not liable.”' It will be seen that the court proceeded upon the theory that the foreman in equipping and starting out the hand car was pro hac vice the principal, and that, having provided a suitable hand car, and having properly equipped it with suitable workmen as required by the Flike Case, supra, and having actually equipped it with signal flags, his failure to use the appliances thus provided was the failure of a fellow servant, for which the company was not liable. Under this reasoning, can it be contended that the court would have absolved the company from liability if the evidence had shown that the car was not equipped with signal flags, but that such flags might have been procured by the foreman at the car barn before starting out on the day of the accident ? Manifestly not.

In the instant case it is perfectly clear that cars could not be operated with safety after dark unless equipped with light other than that furnished by the electric current which propelled the car. There is not one word of testimony that it was impossible, or even impracticable, to have such lights on the cars when they left the car bam. Just why the company should have resorted to the practice of placing these lights on the curb instead of on the cars does not appear.

It appears in evidence that it was not an infrequent occurrence for a trolley pole to jump the wire and leave the car and its occupants in darkness and danger. This fact must have been known to the company, and imposed upon it the duty and responsibility of taking adequate precaution to equip its cars with end lights. How did it meet that duty ? By merely providing lights, and placing them on the sidewalk, and trusting to the memory of busy conductors to equip their cars therewith. Obviously, no car was equipped with an end light while that light was off the car and on the sidewalk. It was equipped with such a light in legal contemplation when, and only when, the light was in place on the car. When once in place on the car andl ready for use, the company’s responsibility ceased.

When Carter engaged with the company as one of its motormen, he assumed, as previously stated, the ordinary and natural risks incident to the employment, among which was the risk of the trolley pole jumping the wire, provided such an occurrence should not be due to faulty construction, the risk of a fellow servant’s failure to light a signal lamp, or the risk of a fellow motorman’s carelessness in backing a car into his; but he did not assume the risk incident to the lack of necessary and proper appliances on his own and other cars, including signal lamps.

We are forced to conclude that good judgment and public policy demand that the company be required at its peril to, in fact, equip its cars with such light, and thus protect its employees and the lives of the passengers entrusted to its keeping. Common carriers of passengers should be held to a very strict accountability for any dereliction of legal duty, which increases the hazards and dangers of travel. It is to just such derelictions as occurred in this case that so many appalling accidents are traceable. Indeed, the tendency of the times is towards hurry and haste and carelessness, regardless of human life, and this tendency on the part of common carriers of passengers should, if possible, be checked.

Shaffer, who was in charge of car No. 409, was a comparatively inexperienced conducter. To be sure, he had been instructed to stop his car at 4th and T streets, and equip it with a red light; but we all know how easy it is for an inexperienced person charged with remembering many things to forget some. The company should have known this, and instead of placing lights on the curb it should have placed them on the car before the car left the car barm Had the light been on the car, the accident probably would not have occurred, because the moment the car became in darkness Shaffer would have remembered to light his red lamp even though he had previously forgotten to do so.

An examination of the cases cited by appellee will show, with possibly one exception, and that a State case, that in each instance the device or appliance was actually furnished by the master and placed in a proper position ready for use, and that the injury was caused by the subsequent failure of a fellow servant to use the appliance.

The record shows that Carter knew of the practice of conductors to equip their cars in the manner stated, but we are convinced that this knowledge does not in any way militate against his right of recovery. “The employee is not compelled to pass judgment on the employer’s methods of business, or to conclude as to their adequacy.” Texas & P. R. Co. v. Archibald, 170 U. S. 672, 42 L. ed. 1191, 18 Sup. Ct. Rep. 777. In Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 68, 48 L. ed. 100, 24 Sup. Ct. Rep. 24, it is said: “The employee is not obliged to pass judgment upon the employer’s methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation.” See also Texas & P. R. Co. v. Swearingen, 196 U. S. 62, 49 L. ed. 387, 25 Sup. Ct. Rep. 164.

We are convinced that Carter, who was comparatively new in the business, and whose duty did not compel him to have anything to do with these lamps, had a right to assume that the company would perform its duty and take adequate precautions to equip its cars with end lights, and that the failure of Shaffer in that respect was the failure of the company, for the consequences of which the company must be held responsible.

This disposes of the case, and renders it unnecessary to consider the other assignments of error.

The judgment is reversed, with costs, and the cause remanded, with directions to enter judgment for the plaintiff in the sum of $2,500, the amount named in the special verdict of the jury, and interest from the date of such verdict. Reversed.