37 Mich. 205 | Mich. | 1877
The case of the plaintiff in the court below was substantially the following:
In May, 1875, Williams, the intestate, a young man between seventeen and eighteen years of age, was living with his mother, the plaintiff, and his sister. He was a little lame, and not strong intellectually. He was employed by the railway company and set at work as a common laborer
Evidence was given on the part of the defense to show that common laborers with construction trains were accustomed on occasion to assist with the brakes, and that Williams had requested the privilege of doing so in order that he might learn the business; but in finding as they did for the plaintiff the jury must necessarily have found against this evidence, and we must assume in reviewing the case that the facts were as the plaintiff claimed.
The principal question of law which the record presents is whether, on the hypothesis stated in his instruction, the conclusion drawn by the judge lawfully follows. In discussing this question it has been assumed by counsel on one side and conceded on the other that in general the employer is not liable to one of his servants for an injury suffered by him in consequence of the negligence or wrongful act of another servant in the same general employment, and that, as between himself and his employer, each servant takes upon himself all the risks of the employment. But while conceding this, it is claimed on behalf of the plaintiff that if the master wrongfully sends his servant into a dangerous place or exposes him to a risk not connected with the service, and in consequence he is injured, the rule which exempts the master from responsibility has no application, because the risk is not one which the servant has assumed. It is also contended that if, instead of being sent by the master in person, the servant is thus wrongfully exposed to
I. That on the plaintiff’s theory of the facts Williams was under no obligation to obey the order of Smith, and if he did obey it, his doing so must be regarded as his own voluntary act. If there was negligence in sending him to stop the train, there was negligence on his part in going, and therefore, conceding that in giving the command Smith stood in the position of the railway company, and that the company must assume his act, the case is the ordinary one of contributory negligence, and the action must fail on that ground.
II. .That if Smith, when he sent Williams to stop the train, was putting him to a service he had not engaged to perform, the act was not within Smith’s authority as conductor, but in excess of his powers, and if wrongful was the tort of Smith alone, as much so as if he had committed an assault upon Williams; and neither morally nor legally can the railway company be held responsible.
The fact that Williams was under iio obligation to obey the order of Smith, is not in our opinion sufficient to sustain the first proposition. When one person engages in the employment of another, he undertakes to obey all lawful orders, and he subjects himself for any failure to do so, to the double liability of being expelled from the employment and of being required to pay damages. It is true the master had no right to direct him to do any thing not contemplated in the employment, but when one thus contracts to submit himself to the orders of another, there must be some presumption that the orders he receives are lawful, the giving of the orders being'of itself an assumption that they are lawful; and the servant who refused to obey would take upon himself the burden of showing a lawful reason
It may still be said that in thus yielding .obedience he accepts the risks which accompany it, for the same reasons that he accepts the risks of the employment in which he actually engaged. But the risks the servant actually assumes are only those which are properly incident to the employment; and he may always require the master to respond for injuries resulting from his personal negligence. Cases of this sort occur where the master exposes the servant to unsafe machinery or sends him into places where there are risks of which he is ignorant. Marshall v. Stewart, 2 Macq. H. L., 20; s. c., 33 E. L. & Eq., 1; Mellors v. Shaw, 1 B. & S., 437; Ryan v. Fowler, 24 N. Y., 410; Chicago, etc. R. R. Co. v. Swett, 45 Ill., 197; Schooner Norway v. Jensen, 52 Ill., 373; Snow v. Housatonic R. R. Co., 8
Nor do we think it follows that because Smith at the time was exceeding his authority, the company is not responsible for his action. It is in general no excuse to the employer that an injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business; and the reasons for holding him responsible for the servant’s conduct are the same whether the injury results from a failure to observe the master’s directions, or from neglect of the ordinary precautions for which no specific directions are
In this case Smith had charge of the train and of the men employed with it. In what he did, he was not purposely committing any wrong outside the employment, but his wrong was committed while acting in the very capacity in which he was employed, and had for its manifest purpose not to injure Williams but to advance the interests of the railway company. As between the company and any other than a fellow servant, there could be no question that his act should be deemed the act of the company. Shea v. Sixth Avenue R. R. Co., 62 N. Y., 180. But we also think that where the superior servant by means of an authority which he exercises by delegation of the master, wrongfully exposes the inferior servant to risks and injury, the master must respond. It is only where the risks properly pertain to the business and are incident to it, that the master is excused from responsibility; and a risk of this nature not being one of the kind, the general rule applies, and he must answer for the misconduct of his agent. This was expressly held on facts similar to the present in Lalor v. Chicago, etc., R. R. Co., 52 Ill., 401, and the cases of Louisville, etc., R. R. Co. v. Collins, 2 Duv., 114; Railroad Co. v. Fort, 17 Wall., 553, and Frost v. Union Pacific
A subordinate question is made on the evidence introduced to show the poverty of the mother and sister of the intestate, and the instruction of the court based upon such evidence, which was as follows:
“In making your estimate of damages it is proper for you to consider all the circumstances in the case, and to take into consideration from the evidence, whether family of deceased were, at the time of his death, and are now in poor and needy circumstances, and looked to the boy when alive for at least partial support, and whether he gave his earnings when alive to his mother’s and sister’s support; whether he was able and willing to work for their benefit; and also the evidence as to the value of his services at the time of his death.” We do not understand that any part of this instruction is objected to except that which permitted the jury to consider, as bearing upon the question of damages, the poverty of the family.
The damages recoverable in a case of this nature are by the statute to be assessed with reference “to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person.” Comp. L., § 2351. They have no regard to the needs of the persons designated, or to any moral obligation which may have rested upon the deceased to supply their wants. If the moral obligation to support near' relatives were to be the criterion, we might take their poverty into account as bearing upon the extent of this obligation; but as this may or may not have been recognized, and if recognized may have been very imperfectly responded to, it is manifest that it can be no measure of the pecuniary injury the family received or was likely to receive from the death. What the family would lose by the death would be what it was accustomed to receive or had reasonable expectation of receiving in his life time: and to show that the family was poor has no tendency towards showing whether this was or was likely to be, large or small. One man contributes liberally in aid of his poor
A dictum in Potter v. Chicago, etc., R. W. Co., 21 Wis., 372, 375, implies that the pecuniary circumstances of the family may properly be taken into account by the jury. But if this is so, and their poverty should increase the damages, so should their wealth diminish them; and this would establish a rule of damages unknown to the statute and repugnant to the one named by it. There are, it is true, some cases in which, perhaps, such evidence must be received, because it tends to establish a moral obligation to demand assistance in the future from one at the time incapable of giving it: as where the person killed was a very young child, and at present contributing nothing in aid of any one. Ewen v. Chicago, etc., R. W. Co., 38 Wis., 613; Barley v. Chicago, etc., R. R. Co., 4 Biss., 430; Chicago v. Powers, 42 Ill., 169. But it is a sort of evidence that, when necessarily received should be used with caution.
In Dalton v. Southeastern R. W. Co., 4 C. B. (N. S.), 296, to which we are referred, the damages appear to have been measured, not by the circumstances of the family, but by an estimate very properly based on the customary contributions of the deceased. The same remark is substantially true of Franklin v. Southeastern R. W. Co., 3 H. & N., 211. The wealth of the defendant, it is very justly held, can be no measure of the loss sustained (Conant v. Griffin, 48 Ill., 410); though it Avould seem to be quite as suitable for the consideration of the jury as the poverty of the next of kin. See Pennsylvania R, R. Co. v. Zebe, 33 Penn. St., 318. His wealth and their poverty would make the like appeal to his generosity, but the response to the
As the verdict awarded to the plaintiff $3400, it would seem very manifest that the instruction misled the jury into giving damages for something besides the pecuniary injury. As the plaintiff’s showing was that Williams was feeble in body and mind, and earned the wages of a common laborer only, from which his own support must be derived, it is difficult to understand any estimate which would place the loss of the family at such a sum. The annual interest on it at the customary legal rate for money borrowed would have been more than three-fourths the whole annual earnings, even supposing Williams to have had steady employment, and to have lost nothing from sickness or other contingencies; and at the lowest statute rate, it would have been more than half. It seems incredible that the family could have had reasonable expectation of receiving an annual sum to either amount from such a source, but if they had, they could at most have realized it only for his life-time, while this award of the sum in gross would enable the family to realize the income, not for his life merely, but in perpetuity.
In this opinion we have not attached importance to any mental weakness of the deceased as bearing upon the right of action. It was enough that he was inexperienced as brakeman; but whether even this was important may fairly be a question. The fact existed in this case, and we need inquire no further.
The judgment must be reversed, with costs and a new trial ordered.