54 Kan. 21 | Kan. | 1894
The opinion of the court was delivered by
This was an action brought by Alfred M. Seeley against the Atchison, Topeka & Santa Eé Railroad Company to cover damages for personal injuries alleged to have been sustained because of the negligence of the railroad company. In his petition, he alleged that on April 2, 1889, he was in the employ of the Atchison, Topeka & Santa Fé Railroad Company, which operated and controlled a railroad extending from Kansas City to Chicago, known as the Chicago, Santa Eé & California Railroad Company.
He acted in the capacity of brakeman on a construction train, and, on the morning of April 2, 1889, the construction train, composed of several box cars loaded with coal, with an engine attached, started from Coburn, Mo., in charge of a conductor, and when they reached the station of Courtney, in Missouri, the conductor and trainmen were ordered to attach to the train a car loaded with coal, and upon which there were two round, iron smokestacks about 16 feet in length and two feet in diameter, and take the car so loaded with coal and the smokestacks to Wayne City, about a mile and a half distant. In obedience to this direction, the car so loaded was attached in front of the engine, and, by order of the conductor, Seeley took his station on the top of the coal car, which was being pushed in advance of the engine, in order to signal the engineer when they approached the switch where the car was to be placed, when it was his duty to leave the coal car and turn the switch.
While he was thus at his post, and in the act of passing along the end of the coal car in front of one of the iron smokestacks, which were lying loosely on top of the coal, with his back toward the engineer, and exercising due care, the engineer, well knowing the plaintiff’s dangerous position in front
It was alleged that the smokestacks were improperly and defectively loaded, being “unscotched” and unfastened on. top of the coal, and that Seeley had no connection with the loading and no knowledge of the negligent manner in which they were loaded, and was not guilty of any negligence which contributed to his injury. This negligence of the company is claimed to be the principal and proximate cause of the injury suffered. The answer of the defendant was, first, a general denial; next, that the common law was in force in Missouri, and that the injury was caused by the negligence of the fellow-servants of Seeley, or by his own carelessness or negligence.
Upon the trial, the jury found that on April 2, 1889, the Atchison, Topeka & Santa Fé Railroad Company was the lessee of and operated the Chicago, Santa Fé & California railroad, and that Seeley was at that time in the employment of the lessee as brakeman. It was further found, that the defendant company was guilty of negligence in loading the smokestacks upon the coal car; and further, that the engine driver of the construction train was also guilty of a want of ordinary care in handling his train; but that the manner in which the smokestacks were loaded upon the car was the proximate cause of the injury. In answer to questions, it
The principal contention in this case is, that the injury was the.result of the negligence of the fellow-servants of Seeley, for which, at common law, the company was not liable. It was admitted at the trial that the common law was in force in Missouri, where the injury occurred, and decisions of the supreme court of that state were introduced in evidence which showed that the common law in respect to the liability of the master has not been changed or modified by any statute of that state. The placing of smokestacks upon the top of a loaded coal car, without fastenings or guards, was a clear case of negligence on the part of those who loaded them and those whose duty it was to inspect and prepare the car for transportation. The bed of the car was filled with coal, and the smokestacks lay loosely upon the top, subject to be shaken off by a jerk resulting from the starting or stopping of the train. Neither Seeley nor any of the trainmen associated with him loaded or assisted in loading the smokstacks upon the car, and he claims that he had no knowledge or opportunity to know that they were loose and “ unscotched.” There was no yard master at the station of Courtney, and the duty of loading them and seeing that they were properly loaded devolved upon the station agent at that place. The car was already loaded, and was hurriedly placed in the train as soon as they reached the station of Courtney. If Seeley had inspected the car, he would readily have seen the dangerous
Taking the testimony of Seeley as true, it is enough to sustain the finding that he was not guilty of contributory negligence. He had a right to assume that the car was safely loaded and in a fit condition for transportation, and that the place of lookout which he was required to take on the end of the car was free from peril on account of the manner in which it was loaded. It was the positive duty of the company to safely load the car, and before starting it to inspect and see that it was in a safe condition for those who were required to handle it; and Seeley had a right to expect that it was properly prepared for shipment, had been duly inspected and found to be in a suitable condition to be attached to the train. Whether he was aware of the condition of the car, or, under the circumstances, should have observed its condition, was a question for the jury to determine. From the testimony which he gives respecting his want of knowledge or opportunity to know of the danger, the positive command to hurry up so as to get out of the way of a coming train, and the order to keep a lookout in a direction which did not bring the danger within the range of his vision, it cannot be said that the finding of the jury with respect to his care is without support.
The question remains whether the company can be held liable for its negligence in failing to properly prepare and inspect the car before it was turned over to the trainmen for transportation. It is contended that those who inspected and
“ Those employed by the master to provide or to keep in repair the place, or to supply the machinery and tools for labor, are engaged in a different employment from those who are to use the place or appliances when provided, and they are not, therefore, as to each other, fellow-servants. In such case, the one whose duty it is to provide and look after the safety of the place where the work is to be done represents the master in such a sense that the latter is liable for his negligence.” (Sadowski v. Car Co., 84 Mich. 100.)
“ At common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow-servants to work with him; and when the master had properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and coemployés. And at common law, whenever the master delegates to any officer, servant, agent, or employe, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent or employé stands in the place of the master and becomes a substitute for the master, a vice principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence. ”
In A. T. & S. F. Rld. Co. v. Moore, 31 Kas. 197, this doc
As has been said, there are some duties which the company, as master, owes to its employés from which it cannot relieve itself except by performance. The providing of a safe place for Seeley to work, and of servicable and safe appliances and instrumentalities to be used in connection with his work, was a positive duty, and those who performed or should have performed the same stand in the place of and
“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 employé, 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 employés 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. ”
In the Baugh case, the supreme court of the United States fully indorses the doctrine of A. T. & S. F. Rld. Co. v. Moore, 29 Kas. 632, and quotes largely from that opinion as to the relation of the master to the servant, and the doctrine of fellow-servants. In the recent case of Railway Co. v. Snider, 14 Sup. Ct. Rep. 756, a brakeman in the employment of the company was alleged to have been injured through the negligence of an inspector, and it was held that they were not fellow-servants, and that, under the circumstances, it was the duty of the company to see that the cars that were about to be drawn out upon the road were in a safe and proper condition, and that this duty could not be delegated by the company so as to exonerate it from liability to its servants from injuries resulting from omission to perform that duty, or through its negligent performance. It was held that
“The duty of a railroad company to exercise reasonable care in furnishing adequately safe trains for the use of its employés is not discharged by simply using reasonable care to employ and retain only competent and diligent inspectors,*31 but it is liable if its inspectors in fact fail to discover a defect which a reasonable examination would have disclosed.”
Aside from the consideration that it was the positive duty of the company to properly prepare and inspect the car for transportation in the train, it is also clear that those who were to perform that duty were not in the same grade or employment of the service as the brakeman on the train, and therefore could not in either view be held to be fellow-servants. An authority is cited to the effect that, where the company has employed a competent inspector to see that the cars are properly loaded and in good condition, it cannot be held liable for the negligence of the inspector in failing to observe that the car was improperly loaded. (Dewey v. Railroad Co., 56 N. W. Rep. [Mich. ] 756.) This authority is not satisfactory to us nor in line with the decisions that have been cited. We are unable to see any reason for a distinction between the preparation and inspection of the car itself as a fit instrumentality to be placed in a train and the preparation and inspection of a loaded car to be placed in the train for transportation. Each is an instrumentality to be used in connection with the services necessary to be performed by the trainmen in its transportation, and no distinction between them is seen, so far as the obligation of the company or the safety of the employes engaged in handling it are concerned. The inspection in either case is made with reference to the same end, and the person to whom this duty is delegated stands in the place of the company, and the latter is responsible for his acts.
The charge of the court is criticised, and while the instructions are voluminous and involve many repetitions and some immaterial matter, we find nothing in them which is not in harmony with the views expressed, nor which can be held to be prejudicially erroneous. The judgment will be affirmed.