78 Wash. 67 | Wash. | 1914
Action to recover damages for personal injuries. The complaint alleges, in substance, that the defendant is and was, at all times mentioned, a corporation organized under the laws of the state of Wisconsin, owning and operating a transcontinental railway through the county of Lewis, with a junction point at Centralia; that
“On May 25th, 1912, and for a long time prior thereto, the said defendant operated a work train hauling gravel and material in the construction and repair of that part of its trans-continental system located at Centralia. That the said work train was under the care and charge of a conductor and upon which work train many men were employed in the work of constructing and repairing said defendant’s tracks and yards used by said defendant in its interstate commerce at Centralia.”
As grounds of negbgence, it is alleged that the defendant carelessly and negligently failed to provide a proper conveyance; that plaintiff was compelled to ride upon the pilot of the engine; and that, after the engine had slowed down for the purpose of permitting him to alight therefrom, the engineer negligently started the engine forward with a jerk, before the plaintiff had time to alight, with such force as to throw the plaintiff out of his balance, causing him to plunge forward, off of the engine, striking upon his left arm, breaking it at the wrist.
The answer denied the allegations of negbgence, denied that the plaintiff’s work had any connection with interstate commerce, denied the nature and extent of the injuries, and pleaded, as affirmative defenses, contributory negbgence, assumption of risk, and injury by negbgence of a fellow servant. The reply traversed these affirmative matters.
The evidence showed that the plaintiff began work for the defendant in January, 1912; that he first worked* in clearing ground for a new roundhouse in Centraba, and assisted in plowing the ground and afterwards worked as cable man on the work train haubng gravel from the gravel pit about a
The accident happened about fifteen or twenty minutes after six o’clock, and after the men had completed their day’s work and were returning home on the engine. The evidence showed that, in the mornings, a few minutes before seven o’clock, when the engine was going out to the pit, it would slow down and sometimes stop about half a mile north of the depot to allow the plaintiff and other men living in that vicinity to get on; and in the evening, when returning, the engine would slow down and sometimes stop at this same place so that the plaintiff and the others who lived near could get off; that when six o’clock, the quitting time, came, the
“171. Look after safety of employees engaged with train; examine grain doors and fastenings attached to cars, and see that they are in such condition that employes while working on or about the train are not exposed to risk or injury; report respecting work on which engaged to the officer in charge of such work, and telegraph the superintendent at the close of each days work report of work done, causes of delays, work to be done the fobowing day, and working bmits required.”
“I am of the opinion that the evidence is not sufficient to warrant a recovery under the Federal employers’ liability act. The plaintiff at the time of his injury was not engaged in any act of interstate commerce. I will take the matter under advisement until morning.”
The following morning, the court overruled the motion for a directed verdict, and instructed the jury on the theory that the relation of master and servant did not exist at the time of the accident, but that, if the plaintiff was riding upon the engine by invitation or direction, or with the consent of those in charge of the train, or in pursuance of a custom acquiesced in by the defendant, or if those in charge of the train knew of his presence on the engine, he would be a licensee, and that defendant owed him the duty of reasonable care, though not the high degree of care due to a passenger for hire. The cause was submitted to the jury upon these instructions, so far as the record shows, without argument of counsel. The jury returned a verdict for the plaintiff for $4,000. The defendant moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. Both of these motions were overruled. Judgment was entered and defendant appealed, assigning as error the overruling of the motions for an instructed verdict, for judgment notwithstanding the verdict, and for a new trial, the admission in evidence of rule No. 171, the giving of certain instructions by the court, and the refusal to give a requested instruction.
On these assignments, the appellant bases four contentions: (1) that the respondent, having brought his action
I. It is manifest that, if an action as at common law was properly presented by the pleadings, it was sustained by sufficient evidence to go to the jury, both on the question of the appellant’s negligence and that of the contributory negligence of the respondent. This can hardly be seriously questioned under the evidence, the full purport of which we have set out in our statement of the case. The appellant’s chief contention is that the case was not one properly triable as at common law, the argument being that the respondent, having brought his action alleging that the appellant is a transcontinental railroad, and that the work in which the respondent was engaged was the repair of a part of the appellant’s transcontinental system, used in interstate commerce, evinced an intention to bring the action under the Federal act and that, when the evidence failed to sustain a cause of action under that act, the action should have been dismissed; that, in an action brought under the Federal statute, by an injured employee engaged in interstate commerce, the statute limits the character of the defense that can be made by the carrier, prohibits the removal of the cause to the Federal court, and provides a period of limitation beyond which such action cannot be brought, in all of which it differs from the state or common law; that, by treating the complaint as one at common law, the court circumvented the law permitting a nonresident defendant the right of removal to the Federal court, since, in any case, a plaintiff might falsely allege that the carrier was engaged in interstate commerce, and that the employee, when injured, was
The argument further seems to assume that the complaint, eliminating all reference to interstate commerce, did not state a cause of action as at common law. A reading of the complaint convinces us that this position is" untenable. Moreover, the appellant construed the complaint as one at common law, as is evidenced by its answer, which pleads every defense available at common law, and some defenses not available under the Federal statute. If the appellant had desired to remove this cause to the Federal court, the same construction which it put upon the complaint by its answer would have enabled it to procure such a removal; If the appellant had desired a removal, it would have been an easy matter to compel the respondent to elect whether he would prosecute his action as one at common law or one under the Federal act. Such an election would, of course, have been binding as fixing the law of the case. There may be doubt as to the sufficiency of the complaint to state a cause of action under the Federal liability act. We have no doubt of its sufficiency under the common law. In view of the state of the pleadings and the construction put upon the complaint by the appellant’s answer, and in view of the evidence sustaining the complaint so construed, we would deem it hardly necessary, but for the fact that the question is a new one in this state, to discuss the authorities cited by appellant as sustaining the claim that there was such a departure in the cause of action submitted to the jury from the cause of action pleaded as to entitle the appellant to a reversal.
There is no decision, so far as we are advised, which holds that, where a complaint states facts sufficient to show a liability at common law, proof admissible thereunder should be excluded on the ground of variance merely because the complaint also alleges that the railroad company was engaged in interstate commerce, and that the injured person was, at
In St. Louis, San Francisco & T. R. Co. v. Seale, 229 U. S. 156, the action was brought by the widow and parents of the decedent, under the Texas statute for wrongful death. The case pleaded did not state a cause of action under the Federal act because two of the plaintiffs, the mother and father, were not beneficiaries under the act, which is required to be brought through the decedent’s personal representative. The complaint stated a cause of action only under the state statute. The facts proved showed that the deceased was employed in interstate commerce, and that the liability, if any, was under the Federal employers’ liability act. The court, holding that the Federal act, where applicable to the facts proved, superseded the state statute, and pointing out that “the cause of action sought to be en
“When the evidence was adduced it developed that the real case was not controlled by the state statute but by the Federal statute. In short, the case pleaded was not proved and the case proved was not pleaded. In that situation the defendant interposed the objection, grounded on the Federal statute, that the plaintiffs were not entitled to recover on the case proved.”
There was a clear. departure in the facts proved from the facts pleaded, and, as said- in some of the cases, “a departure from law to law.” The cause was remanded without prejudice to the representatives of the deceased to proceed under the Federal act. Obviously, the decision has no application either to the pleadings or to the facts here. In this case, sufficient facts were pleaded to state a cause of action at common law. The evidence developed a case at common law, but none under the Federal act. Viewing the action as one at common law, there was no departure from the facts pleaded in the facts proved, hence no departure from law to law.
In St. Louis, Iron Mowntain & Southern R. Co. v. McWhirter, 229 U. S. 265, the action, as the court held, was-“in express terms exclusively based upon” the Federal hours of service act of 1907, and the Federal employers’ liability act of 1908, and “no non-Federal ground was either presented below or passed upon.” The supreme court, therefore, of necessity, confined its decision to the questions, all Federal, presented by the record for review. Manifestly, the case has no bearing upon the questions here involved.
In Union Pac. R. Co. v. Wyler, 158 U. S. 285, the plaintiff amended his complaint from a statement of general negligence to a statement of negligence under a Kansas statute. This was an unmistakable election to stand or fall by the statute, and made a clear departure from the original common law cause of action. The court held that, by pleading
The case of Kanton v. Kelly, 65 Wash. 614, 118 Pac. 890, 121 Pac. 833, is also cited by the appellant. In that case, an action for wrongful death was brought under one section of the statute. It was tried as stating a cause of action under that section. We merely held that on appeal the parties would be confined to the case made, both by the pleadings and proof.
On the other hand, the case of Zachary v. North Carolina R. Co., 156 N. C. 496, 72 S. E. 858, seems to us to support the view taken by the trial court in the case before us. In the opinion, it seems to be assumed that the facts pleaded were sufficient to state a cause of action, either under the Federal liability act, or under the state law. The court held that, under the facts proved, the Federal act did not apply, and that the case was properly tried under the state law, for the reason that the deceased, at the time he was killed, was not engaged in any act of any kind of commerce. He was on his way to his boarding house for a purpose personal to himself. The evidence of negligence was held sufficient to take the case to the jury under the state law.
In Jones v. Chesapeake & O. R. Co., 149 Ky. 566, 149 S. W. 951, the complaint, as in the case before us, stated facts sufficient to constitute a cause of action for negligence at common law, and also added the allegations necessary to recovery under the Federal liability act of 1908. The lower court held that the plaintiff, by his evidence, failed to establish a cause of action under the Federal statute, and dismissed the action. On appeal, the supreme court of Kentucky, after holding that the evidence was sufficient to invoke the protection of the Federal statute, in that the plain
“In addition to what we have said, appellant was entitled to have his case submitted to the jury upon the idea that he was entitled to recover at common law if his boss was guilty of gross negligence in having the rail shoved without first receiving notice from appellant that he was ready for it to be shoved. This court has often decided, under such state of facts, that the injured party was entitled to recover. The act referred to did not repeal the common law as applicable to Lewis county, it, at most, only superseded that law; therefore, when appellant brought his action under the Congressional act, and the lower court determined that his evidence did not show him to be entitled to recover under that act, he was then entitled to have his case submitted under the common law.”
Obviously, if, as held in the last quoted decision, the Federal act did not repeal, but only superseded the common law in a proper case, then, in a case such as that here presented, where both the complaint and proof showed that the appellant was not, at the time of his injury, engaged in any act connected with interstate commerce, but did state facts sufficient to show a right of recovery under the common law, it would have been positive error not to submit the case to the jury upon that theory.
We are not impressed by the further contention that the fact that the evidence showed, contrary to the allegations of the complaint, that the respondent was, at the timé of the injury, not in the employ of the appellant, but a mere licensee, was a fatal variance. The complaint alleged the facts, and the allegation that, at the time, the respondent was in the appellant’s service, was a mere mistaken conclusion. The variance between pleading and proof was not such, when all the allegations are considered, as to constitute surprise reasonably entitling the appellant to a new trial, much less to a dismissal.
“We think that when the respondent had ceased his day’s work at track laying, he was not in the employ or under the control of the appellant until he again resumed track laying under the superintendency of Linder, the foreman of the track gang. Linder certainly had no control over the respondent while going to and from his work, and the respondent was not under any obligation to go to and from his work of track laying on the cars of the appellant. At six o’clock his day’s work ended. He had no rights and no privileges on that car, other than or different from those of any other passenger. He was not required to perform services on the car. He was under the control of the conductor of the car and not of his own foreman, just as any other passenger on the car.”
The evidence here shows that the respondent’s day’s work ended when he ceased his labors at the pit at six o’clock. After that he was at liberty to proceed to his home in any manner he saw fit. He was no longer under the control or direction of the appellant or any of its employees or agents. The mere fact that he was permitted, if he so desired, to ride upon the engine to a place near his home did not prolong his hours of service or make him a fellow servant of the engineer. Moronen v. McDonnell (Mich.), 143 N. W. 8; Dickinson v. West End St. R. Co., 177 Mass. 365, 59 N. E. 60, 83 Am. St. 284, 52 L. R. A. 326; Fletcher v. Baltimore & P. R. Co.,
The case of Dishon v. Cincinnati, N. O. & T. P. R. Co., 126 Fed. 194, chiefly relied upon by the appellant, is based upon the broad principle that the assumption of risk of negligence of a fellow servant is as broad as the scope of action on the servant’s part required or authorized by his contract of service, and on the assumed fact that the servant injured while passing between cars in a passage left open for the purpose was doing a thing contemplated as a right, not a mere license, by his contract of employment. He was using the mode of ingress and egress provided by the company for the use of the employees in connection with the section house. In the case before us, the evidence shows that the respondent had no right, under his contract, to ride upon the engine. Every particle of evidence touching the subject points to the conclusion that his work for the day and his contractual right to be upon the appellant’s premises ceased with his day’s work at the pit. After that, he was there by sufferance, and was merely permitted to ride home upon the engine. While there are many authorities which use language broad enough to sustain the appellant’s contention, we believe that, so far as the decisions are reducible to any logical, coherent, harmonizing principle, it is that laid down in the Dishon case, which we think inapplicable here. Louisville & N. R. Co. v. Stuber, 108 Fed. 934; Olsen v. Andrews, 168 Mass. 261, 47 N. E. 90; Boldt v. New York Cent. R. Co., 18 N. Y. 432; Ewald v. Chicago & N. W. R. Co., 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. 178; Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336. Upon the principle announced in that case, that the scope of respondent’s action required by his contract of service determines the continuance or non-continuance of the relation of master and'servant after working hours, we hold that the relation in the case before us ceased when the respondent had finished his day’s work.
The case of Horton v. Oregon-Washington R. & Nav. Co.,
“The deceased was going to the pumping station by the means supplied by the master. He was performing a necessary part of his employment in the manner contemplated by the master.”
That case falls within the rule announced in the Dishon case, but is wide of the case here presented.
III. The admission in evidence of appellant’s rule No. 171, prescribing the duties of work train conductors as to safety of employees on such trains was, of course, improper, but it does not follow that its admission was prejudicial. The court instructed the jury to the effect that, by the respondent’s own evidence, the appellant owed him no duty to transport him from his work to his home in Centraba, or to provide him with a caboose or other conveyance upon which to ride; that, if the jury found that he was riding on the pilot or cow-catcher of the engine, and did so by the consent or invitation of the appellant, he was, at best, but a licensee and assumed all the risks incident to riding thereon, and that the respondent could only be held bable for his injury in case the jury further found that those in charge of the train were guilty of some positive act of negligence causing the injury. Other instructions were given limiting the right of recovery to a finding of positive negligence in the operation of the engine, causing the injury. It is obvious that, under these instructions, the admission of the rule in evidence could not have been prejudicial. The things therein stated were clearly eliminated by these instructions from the consideration of the jury.
IV. Finally, it is contended that a new trial should have been granted because of excessive verdict. The evidence shows that the large bone of plaintiff’s wrist was broken; that at the time of the trial, there was a marked limitation of motion, amounting, in the up and down motion, to about twenty-five per cent short of normal, and, in the rotary mo
“Where the evidence as to the extent of the injuries is conflicting, and there is substantial testimony which sus-, tains the amount of the verdict, the finding of the jury must control. If the verdict is not sustained by substantial evidence, then a reduction of the amount thereof will be ordered or a new trial granted.”
Under the rule there announced, we would not be warranted in reversing the judgment or in reducing the amount of recovery.
The judgment is affirmed.