Herbert v. Northern Pacific R. R.

3 Dakota 38

• Court: Supreme Court Of The Territory Of Dakota
• Decided: May 15, 1882
• Status: Published

Opinion

Hudson J.

This action was brought to recover damages of the defendant company for causing a fatal inj ury to the plaintiff’s leg necessarily requiring amputation.

It appears from the undisputed testimony in the case that on the 24th day of October, 1879, the plaintiff was in the employ of the defendant as brakeman in defendant’s yard at Bismarck, and as such, it was his duty, among other things, to attend, set and loosen brakes when necessary, upon freight trains that came into the yard, in separating and distributing cars, under the immediate direction of the yard master, one G-ilboy. That although the plaintiff had had considerable experience as a brakeman at other places, lie liad worked in this yard but two days, when coming up with some cars from the Missouri River landing to the yard at Bismarck, a freight train which had come in from the east was standing upon the track; orders were given to separate and distribute the cars, and for this purpose the switch engine was coupled on and the work of switching commenced.

The plaintiff was ordered by the yard-master of defendant, to brake and stop two certain cars numbered 1804 and 2280, which had theretofore been “ kicked off ” (as it is termed) and propelled by steam power upon a particular track, and were running toward some stationary cars standing on the same track; That the plaintiff, in obedience to said order, ascended the ladder on the rear end of car 1804, being the hind car, and ran to the forward end and attempted to set the brake attached to said car; That said brake was out of order and could not be made to work so as to stop the said cars, and was utterly useless for that purpose; That as soon as the plaintiff discovered that the brake on said car, 1804, was in bad condition and useless, he stepped on to car 2280 and took hold of the brake on said car for the purpose of braking and stopping said cars. The brake on 2280 is what is termed a “ step brake,” having its upper bearing of the shaft and dog and ratchet upon a shelf or step about one foot below the top or roof of the car; and the plaintiff in attemping to set said brake stepped down with his left foot upon said shelf or step, it being designed for that purpose, and put his foot against the dog to hold it into the ratchet so as to make the brake effective in stopping the cars, which brought his left limb between said cars. The brake on said car 2280 was also defective and out of order, it having been worn by use, and the ratchet would not hold; That while the plaintiff’s left foot was upon the step attempting to hold the dog to the ratchet, the said cars being still in motion struck the stationary cars standing upon the said track.

At the time the train having said cars, No. 1804 and 2280, attached, came into the said yard at Bismarck, the said car 1804, was broken and defective in other respects than in the brake mentioned; it had met with an accident "on its way from Fargo to Bismarck by which the “ dead-wood- ” and “ draw-car, ” sometimes called “ bumper, ” had been pulled out and was then out, and the two cars had been chained together, and were so connected at the time the same were switched off as aforesaid. The two ends so chained together were the ends having the brakes and the end of 1804 having the bumper out; That when car 2280, being forward, struck the stationary cars standing on the track as before described, by reason of car 1804 having no bumper, the two cars were forcibly driven together and coming in close contact, caught, and crushed, and injured the plaintiff’s left leg, from which injury amputation became necessary.

There was some evidence tending to show that the plaintiff knew, or had reason and opportunity to know of the defective conditio n of these cars; but the plaintiff testified on the trial that he had no such knowledge. The defendant' also gave evidence upon the trial to show that it had a car repairer at its yard in Bismarck, whose duty it was to repair its cars and to keep them in repair.

Yerdict for the plaintiff and judgment from which defendant appeals.

The defendant alleges several errors occurring at the trial in the court below, and to which exception was duly taken; but it is not deemed of importance that all of these should be noticed but only such as were pressed upon the attention of the court by the learned counsel- in his argument of the case. And first — it appears that when the cause was called for trial and a jury was being impan-nelled, one C. S. 'Weaver was called as a juror and sworn upon' his Vow dwe; that after examination he was challenged for cause by plaintiff’s counsel and the court sustained the challenge; to which decision of the court the defendant excepted,

We need not inquire whether the examination of the juror showed a good cause of challenge, as the question may be disposed of, as far as this appeal is concerned, on other grounds. It does not appear from the record, that the defendant was prejudiced by not having this juror on the panel. The cause was tried by a competent jury. The defendant could not be restored to its rights by a new tidal, as it could not have this juror impannelled again. The plaintiff, for aught that appears in this record, might have challenged this juror peremptorily; nor does it appear that the counsel for the defendant had exhausted his peremptory challenges or that he did all that he could to free the panel from objectionable jurors. The panel may have been finally acceptable to him. It is for the defendant to show that it was prejudiced by the decision of the court. A judgment will not be reversed unless it appears that a party’s rights have been prejudiced, and as it does not appear that there was any legal objection to the jnry which tried the case, the defendant has not in any legal sense suffered injury, and the court will presume nothing in favor of the party alleging error. Morrison v. Lovejoy, 6 Minn., 224; Atlas Mining Co. v. Johnson, 23 Mich., 36.

Secondly: The defendant insists that the plaintiff cannot recover for an injury caused by the negligence of his co-employee engaged in the same general business, assuming that the evidence shows that the accident which caused the injury to plaintiff was solely from the negligence of his co-employed, viz: the car repairer or yard master.

This is stating a fundamental principle of law, and cannot be disputed, if the defendant’s assumption is true. It may be granted that if the case presented in this contention is one falling within that rule of law, and not within any exception to the rule, the defendant ought to prevail. This doctrine of exemption of the common master from liability to his servant for injuries caused by the negligence of a fellow servant engaged in the same general employment, is stated by C. J. Shaw in Farwell v. Boston & Worcester R. R. Co., 4 Met., 49, as follows: “lie wbo engages in tbe employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adj usted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is likely to know and against which he can as effectually guard as the master. They are perils incident to the service, and which cam be as distinctly foreseen and provided for in the rate of compensation as any other.” In Lanning v. N. Y. C. R. R. Co., 49 N. Y., 521. Folger, C. J., states the law as follows:

“ A master is not liable to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a "fellow servant engaged in the same general business. Nor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness or misconduct has caused the injury. * * * If they are in the employment of the same master, engaged in the same common work and performing dnties and services for the same general purposes, the master is not liable.”

But the same courts declare that while the general doctrine as thus stated is sustained by elementary writers of high authority and by numerous adjudications of the American and English courts, there are well defined exceptions; which resting as they clearly do, upon principles of justice, expediency and public policy, have become too firmly established in our jurisprudence to be now disregarded or shaken.

One, and perhaps the most important of those exceptions, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant when conducting the master’s business to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exigencies of the situation require in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.

It is implied in the contract between the parties that the servant risks the dangers which ordinarily attend or are incident to the business in which lie voluntarily engages for compensation.

But it is equally implied in the same contract that the master shall supply the physical means and agencies for the conduct of his business. It is also implied and public policy requires, that in selecting such means he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business; nor is it one which the servant, in legal contemplation, is presumed to risk, for the obvious reason that the servant who is to use the instrumentalities provided by the master, has ordinarily no connection with their purchase in the first instance, or with their preservation or mavntenanoe in suitable condition after they have been supplied by the master. Hough v. Railway Co., 100 U. S., 213; Flike v. Boston & Albany R. R. Co., 53 N. Y., 549.

This is a comprehensive statement of the common law applicable to the case at bar. But the learned counsel for the defendant cites Sec. 1130 Civil Code of Dakota, and insists that this Sec. places the master and employe under a different rule than the one above stated, and throws upon the latter all the hazards growing out of the negligence of his co-employe. Said section is as follows:

“ An employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks 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 employe.”

But we cannot see that the section of the statute above quoted has changed in any respect the rule of law relating to this subject. It has enacted simply the common law into the statute which cannot give it any more force than it had before such enactment. If the position of the counsel is maintainable then the company could not be held liable for an injury to an employe if the negligence of another employe was at all involved; even “though the company had been mainly in fault, unless the fault was by not using ordinary care in selecting the culpable employe.”

If the position of the appellant is upheld in its full extent, it will in most cases relieve a corporate body, and any employer who acts through general superintendents, from liability to servants for injuries occasioned by imperfect and defective machinery, by unsafe mechanical means or appliances of any kind as well as by incompetent and unskillful sub-agents furnished without due care. The next section of the Civil Code clearly shows by the terms employed that an employer is not to enjoy such an immunity from liability as contended for by tire appellant. It is as follows: “ Sec. 1131 — An employer must in all cases indemnify his employe for losses caused by the former’s want of ordinary care.” We are then brought to the question — What is want of ordinary care in the employer, and when and under what circumstances is he guilty of neglect within the meaning of the law and for which he must be held liable?

This section of the statute is in perfect accord with the decisions which hold that the master is liable to a servant for his, the master’s, own negligence, or want of care and prudence, or for his own personal act or misconduct, occasioning injury and damage to the servant. And such negligence, want of care and prudence,.or misconduct, may be shown in the mismanagement of the master’s affairs, in the selection or furnishing of improper or unsafe machinery, implements, or materials for the use of the servant, and his neglect in maintaining and keeping them in a safe and suitable condition for such use. It is claimed by the counsel for the appellant that having provided a car repairer at this yard, whose duty it was to keep the cars and machinery in repair, it was his neglect, and not the company’s, that these cars were in a dangerous and unsafe condition.

We understand the principle maintained in the cases cited to be, that there are certain duties which concern the safety of the servant that belong to the master to perform, and he cannot rid himself of responsibility to his servant for not performing them by showing that he delegated the performance to another servant who neglected to follow his instructions or omitted to do the duty entrusted to him.

That the acts which the master as such is bound to perform for the safety and protection of his employes cannot be entrusted to another so as to exonerate the former from liability to a servant who is injured by the omission to perform the act of duty, an<| in respect to such duty the servant who undertakes to to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury. It is sometimes a little difficult to determine how far the master’s duty within the rule extends. But in the case at bar there cannot be much uncertainty in that regard. The courts all agree that it is a part of the contract of hire on the part of the master, that he will furnish for the use of his servants, proper, suitable, safe and sufficient machinery and appliances, and keep them in a safe and suitable condition for such use. 'I’his is an imperative duty, a failure to perform which renders him liable as for his own neglect, Cone v. Delaware L. & W. R. R., 81 N. Y., 206; Bessex v. C. & N. W. R’way Co., 45 Wis., 481, 110 Mass., 281; Fuller v. Jewett, 80 N. Y., 46; Drymala v. Thompson, 26 Minn., 40; Snow v. Hoosetonic R’way Co., 8 Allen, 441; Flike v. Boston & Albany R. R. Co., 53 N. Y., 549.

It is clearly made to appear in this case that the injury to the plaintiff Avas the result of the broken car 1804, and the defective and useless condition of the brakes upon both cars. The draw-bar and dead wood being out of car 1804, there was nothing to prevent the cars running together upon meeting with resistance. This of itself might not have caused harm to the plaintiff, but the brake on this car 1804 was out of order, defective and could not be made to work; had this brake been in proper condition the ears might have been stopped before reaching the stationary cars on the track, and plaintiff would probably have remained on that car until they Avere stopped; but this brake upon 1804 failing to work, as it did, the next thing for the plaintiff to do Avas to step onto' car 2280 and attempt to set the brake on that car. That brake A\'as also out of order, and Avliile his foot was upon the dog for the purpose of holding it to the ratchet, the cars striking the stationary cars were forced together, and his leg was caught. Had this brake been in good condition he might still have escaped injury, as his foot would probably have been removed before the concussion. Can we say then that the failure of the defendant to keep these cars, the brakes and machinery upon them in a proper and safe condition for the use of its employes, was not negligence for Avhich it Avas liable? We cannot upon the laAv and the facts presented in this record so decide.

The defendant alleges an error the refusal of the court before, to charge the jury as requested by defendant’s counsel “that if the plaintiff kneAV or had reason to know of the broken or defective condition of. the car before the accident to him, he cannot recover.”

This instruction as a whole could not be given. It assumnd that if the plaintiff had such knowledge he could not recover under any circumstances; whereas, it is a proper question to go the jury whether the circumstances were such, even having such knowledge, he was himself in fault and for that reason not entitled to recover. But the instruction is not warranted by the evidence, as it is confined to the broken car simply; whereas there were defects in the brakes independent of the injury to the car. Nor could it be given for the reason that “having reason to know or having means of knowledge,” is not sufficient to prevent a recovery in any case. It must be actual knowledge to have that effect.

Error is also alleged in the refusal of the court to charge the jury that certain acts and omissions of the plaintiff were negligence, and prevented a recovery, as follows:

That the placing of plaintiff’s limb between the cars in question, was not a necessary act but was voluntary on his part, and that his exposure of his limb to this peril was negligence on his part prevents a recovery of damages for the injury which he received. That the plaintiff having from experience the knowledge of the liability of cars thus employed to become broken and disabled it does not appear that he took any particular care to avoid inj ury from such peril and therefore cannot recover.

The question of contributory negligence on the part of the plaintiff in actions of this kind, has been held by a long line of authorities to be a question of fact for the jury. Negligence is to be determined from all the facts and circumstances attending the case. Certain acts may be negligence under some circumstances and not so under other or different circumstances. Ford v. Fitchburg R. R. Co., 110 Mass., 261, 100 U. S., 225, 19 N. Y., 521, 15 Wall, 401.

It appears from the evidence in this case that the plaintiff immediately previous to the accident, came into the defendant’s yard and found the freight train in which were the two cars in question standing on the track. The switching and distributing of these cars commenced at once. The plaintiff had worked in this yard but two days. He could not therefore have been very familiar with the other employes, the cars, or the work of the yard. He was ordered by the yard master to brake and stop.these two cars at a certain point which evidently required hasty and immediate action; hence the question whether he did know or had reason to know of the broken and defective condition of the cars, and whether he was guilty of negligence or was reckless in acting as he did under these circumstances, were proper questions to be submitted to a jury. Mehan Administratrix, etc. v. The Syracuse, Binghampton, & New York R. R., 73 N. Y., 586; Hough v. Railway Co., 100 U. S. 225.

¥e find by looking into the record that the court did charge on these points as follows: “If the plaintiff, either from the unusual appearance of the car — as, for instance, its being attached to the next car by chains — or from any statement of the yard master or car repairer, had reason to suppose the car in question was defective or had been broken, it was his duty to take care not to expose his person to injuries which a broken or defective car might cause.”

“If the jury believe the evidence of Gilboy, that statements were made by him, in the presence and hearing of plaintiff, that the car was broken, and that it should be taken out and repaired, that was sufficient notice to the plaintiff that the car was defective, and he was bound to take care not to expose his person to injury on account of such defect.”

“If the plaintiff was careless, heedless or negligent at the time the injury occurred and such carelessness, heedlessness or negligence materially contributed to the injury, he cannot recover.”

“If you find from the evidence that the defendant was guilty of negligence in not providing proper and safe machinery and appliances, in consequence of which neglect the injury was received; still if the plaintiff failed to exercise that prudence, care and caution which a prudent man under similar circumstances, ordinarily would exercise, which contributed approximately to the injury, he is not entitled to recover.”

The defendant cannot be heard to say in view of these instructions and the finding of the jury upon them that there is any question of contributory negligence for this court to consider. It was an issue raised by the pleadings, and evidence was given to that point by both parties which was somewhat conflicting. Under the decisions of this court the verdict is conclusive upon that issue. Caulfield, et. al. v. Bogle, 11 N. W., Rep., 511 and cases cited.

In such a case as the one presented in this record the burden of proof to show contributory negligence was upon the defendant. Indianapolis & St. Louis R. R. Co. v. Hurst, 93 U. S., 291; Wharton on Negligence, Sec. 423 and authorities cited; Railroad Company v. Gladmon, 15 Wall, 401.

All the questions worthy of notice have now been considered. There being nothing in the case to call for any interference with the result, the judgement of the District Court is

Affirmed.

All the Judges concurring.