24 W. Va. 37 | W. Va. | 1884
The evidence on behalf of the plaintiff consisted of the statements of fellow-servants of the deceased, who were on the train at the time the accident occurred which caused his death, and they testify as to all the circumstances preceding and attending it, which tended strongly to show that the deceased before and at the time of his death was employed by, and was in the actual sendee of the dofendant'upou the freight train in the declaration mentioned, then on its way through the State of Ohio and through the county of Brooke in this State to the city of Pittsburgh; that on the morning of the 17th of June, 1879, the defendant’s conductor took into said freight train, at Dennison in Ohio, an old stock car, No. “4444,” which from Dennison to Steubenville was the second car from the locomotive, and from Steubenville to Collier’s Station was the car next to the locomotive; that when the train was approaching Collier’s Station, in Brooke county, where it took water from the tank, the defendant’s conductor on said train ordered the deceased, who was at that time the front brakeman on the train, to cut the engine loose to get water and to climb up and help to brake and stop the train, and he was engaged in performing this duty when he was killed; that he had detached the engine from the train, and as he was climbing up the ladder to regain the top of car No. “ 4444,” so that he might use the brake to aid in stopping the train, he caught hold of the hcmd-hold on the top of the car to help himself up, when that part of the roof of the car, to which the hand-hold was fastened, tore loose from the car, and in consequence thereof, ho fell upon the track of the railroad and several of the cars ran over him, causing his death; that that part of the frame of the car where the roof hoards which held the hand-hold was attached was rotten, that the nails with which said roof boards were fastened to the frame of the car pulled out on account of the rottenness of the wood, and that the timbers were rotten and not sufficient to hold the nails; that the hand-hold is used for getting up and down from the cars; that the car, No. “4444,” was examined by two of the plaintiff’s witnesses who were present when the accident occurred, immediately afterwards, and they found the frame of the
The witnesses on behalf of the defendant were the conductor who was on the train at the time of the accident and of various other employes of the defendant, who examined the condition*of ear No. “4444” on the 19th and 20th of January, 1882, and their testimony is confined to the result of that examination. All these witnesses concur in stating that the car was a double decked stock car, and was constructed in March, 1871. The defendant’s conductor of said freight train, testified that he was conductor thereof on the 17th of June, 1879, when Patton was killed. He gives the following account of the accident and of the condition of car “4444.” “We came to Collier’s. I went over to the front end of the train and told Patton to cut off the engine and let it run up the main track to get water before we pulled on the siding. He was standing somewhere on the train, and he -went over with me and got down and. pulled the pin, and was coming back up the ladder. I told him to come up, and as lie was coming up the ladder, he caught hold of the handhold and the hand-hold lot go,. and he came down on the track, and the train was still in motion. The hand-hold and the board to -which it was attached were sound, and the handhold remained firmly fixed on the board to which it -was attached; the board had been fastened to the frame work of the car with nails or screws, I am not sure which. I had been over this car at Steubenville, I think. I think I walked over the entire length of the train to the engine at Collier’s just a few minutes before. I did not get down off the end of the
The residue of this witness’s evidence as well as that of all the other witnesses for the defendant is confined to the examination made by them of car “4444,”-at Dennison, Ohio, on the 19th and 20th of Januiiry, 1882, which ivas done by removing from each end of the car a portion of the roof six or eight inches in width, and tends to show that, at that time, more than thirty ipouths after the accident, the timbers of the car to which the roof was fastened, were perfectly sound, and that none of them were at all rotten. None of these witnesses saw this car, or knewanything about its condition on June 17, 1879, except the conductor; nor do they pretend to state where it has been or how much it has been used since that day. Neither was there any evidence offered tending to show that the defendant before the accident, or at any other time, afterwards, caused the condition of said car to be examined or inspected for any purpose whatever; nor was any testimony offered to show that the car No. “4444,” was ever at any time before June 17, 1879, on the train on ■which deceased -was employed as brakeman, or that he ever saw it before that morning, or that ho was guilty of any negligence in the dischai’ge of his duty or otherwise, in the manner in which he used said hand-hold. Upon this state of facts the jury found the defendant guilty; and we arc asked to say whether this verdict is contrary to the law and the evidence.
This case presents for our consideration, questions of the gravest importance to the thousands of persons in the employ of railroad companies in the conduct and management of their business. Their duties and responsibilities to the
Nut the questions here presented, more especially concern the safety' of that large and continually increasing class of railroad employes who are but little known or cared for by the general public, but whose services, perilous as they are valuable, are absolutely necessary for the safety of travel and commerce. The vast extension of railroads, the impreco-dented increase in the amouut of travel and transportation of property over them,-daily increase the numbers of this class of employes, and make their safety a matter of great public concern. Employed as those persons are by great corporations, often acting through hundreds of agents, in different departments of their business, they are, in addition to the ordinary-risks incident to their perilous service, often unnecessarily exposed to still greater perils, not necessarily connected with their employment, growing out of the negligence of other employes, in other departments of the corporation’s service, with whom they have no intercourse, and over whose conduct in the discharge of their several duties they can exercise no control or influence whatever, except in so far as the corporation can be held liable in damages for personal injuries sustained by them, occasioned by the negligence of such common fellow-servants or the corporation itself.
Under what circumstances is the common master liable to one servant for injuries caused by the negligence of a fellow-servant-in the same general employment?
The general rule on this subject has been laid down by different courts and text-writers with various degrees of precision, some almost totally exempting the master from liability and others attempting to extend it, so as to embrace almost every degree of negligence of a fellow-servant, whether engaged in the same department as the servant injured, or in another and wholly different department.
Shearman & Redfield on Negligence, sec. 86, lays down the rule as follows: “A master- is not liable to his servant for the negligence of a fellow-servant while engaged in the
In Abraham v. Reynolds, 5 H. & N. 143, the rule is laid down by Pollock, C. B., still more broadly: “When two persons serve the same master, one cannot sue the master for the negligence of his fellow-servant. The rule applies to every establishment. No member oí an establishment can maintain an action against the master for an injury done to him by another member of that establishment, in respect to which, if lie had been a stranger, he might have had a right of action.”
The rule as laid down in Wharton’s Law of Negligence, section 224, is identical with that laid down by Shearman & Redfield, supra. Wood avoids laying down the rule in terms, but declares the doctrine applicable in such cases, as follows: “When aservant enters into the employ of another,ho assumes all the risks ordinarily incident to the business. He is presumed to have contracted with reference to all the hazards and risks ordinarily incident to the employment, consequently he cannot recover for injuries resulting to him therefrom. In all engagements of that character the servant assumes those risks ivliich are incident to the service, and as between himself and the master, he is supposed to have contracted on those terms. If an injury is sustained by the servant in that service, it is regarded as an accident, a mere casualty, and the misfortune must rest on him.” But that text-writer qualifies the rule by adding, that “the master is bound to the exercise of reasonable care in reference to all the appliances of the business and is bound to protect his servants from '¡injury therefrom of latent or unseen defects, so far as human care and foresight can accomplish that result, but he does not stand in the relation of an insurer to the servant, and can only be held chargeable when negligence can properly be imputed to him. The servant is hound to see for himself risks and hazards as are patent; but where the danger is not patent he has a right to presume that the master has discharged his duty, and that the appliances of the business
Chief Justice Shaw, in Farwell v. Boston & Worcester R. R. Corporation, reported in 4 Metc. 49, says the general rule is that “he who engages in the employment of another, for the performance of specified duties 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 adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness or ignorance of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard as the master. They are perils incident to the service, and which can he as distinctly foreseen and provided for in the rate of compensation as any other.” This statement of the rule is exceedingly broad, and in effect declares the master to he wholly exempt from responsibility of any injury resulting from the negligence of any fellow-servant who may he engaged in the same employment. The case then before the learned judge (who announced this doctrine) presented only the question, whether the plaintiff who was an engineer on the defendant’s railroad, could hold it responsible for any injury sustained by him by negligence of the defendant’s switchman, who had long been in its employ7, and who was known to the plaintiff to be a careful and trustworthy servant, and where he and the plaintiff had both been appointed by the same superintendent. This case was decided in 1842, when the present gigantic system of railroads, which now7 traverse the several States, was in its infancy and rested mainly on the authority of Lord Abinger, C. B., in the case of Priestly v. Fowler, decided in England in 1837, which was an action brought by a servant against his master, who was injured by the breaking down of a van in which the master had ordered him to go with his goods, caused by the negligence of his fellow-servant, in overloading the van. Tn this case the plaintiff was not permitted to recover upon the broad ground that there -was no precedent for such an action by a servant against his master. But even in that case the learned judge felt himself bound to add that there is no
There seems to be no conflict among the authorities, that where the injuries complained of have been caused to the servant by the direct act, or negligence of the master himself, he is liable; nor is the rule different, when the wrong or negligence, which caused the injury, was the act of an agent who occupied the place of the master, for then, the
’Where a master places the entire charge of his business, or a distinct department of it, in the hands of an agent, exercising no discretion and no oversight of his own, it is maui-' lest that the neglect of the agent, of ordinary care in supplying and maintaining suitable instrumentalities for the work required to be done is a breach of- duty for which the master should be held liable. In such a case the negligence of the agent is the negligence of the principal. Snyder v. Philadelphia, 78 Pa. 25; Whar. L. of Negl. § 229.
But what is the duty of the master to his servant employed by him in a perilous employment? The ordinary risks and perils incident to the employment which the servant can foresee, or shun, or avoid, or guard against by prudence, skill and forecast are assumed by him, and they are supposed to enter into the consideration to be received by him for his services. But before the services of the servant, in many employments, can commence, many duties must be performed, many agencies must bo set to work by the master, and these duties and agencies must be continuously performed and employed, so long as the general business is continued. With railroads, these duties are perpetual. Constructed at enormous expense, furnished with engines and machinery of the most costly and substantial character, supplied with every appliance which experience can suggest, or science and skill construct, tending to insure the safety of travelers and merchandise, running with the greatest speed, day and night, requiring the duties of those in charge of their trains to be instantly performed, it would seem upon reason and principle that the corporation, the general master of all these employes, in all its various departments, should be held accountable for any failure to furnish to its servants, and keep in safe repair all such usual appliances as are necessary for the performance of the servants’ duties, with such reasonable degree of safety that the ordinary risks and perils of the employment may. not be increased. Tf having furnished such machinery and;
, These views are supported by the authority of many cases, 'adjudicated since that in 4 Metc. supra. In Snow v. Housatonic R. R. Co., 8 Allen 441, Snow was injured while uncoupling cars of the Western Railroad Company at a point where the latter had the right to use the road and switches of the defendant at a place where its road crossed the public highway where it had laid down three lengths of plank between its rails the whole width of the highway; for two months before the accident one of these planks had in it a hole in which the plaintiff’s foot was caught and crushed by the cars, while in the performance of his duty. For this injury he sued the defendant, and it was held liable. Justice Bigelow delivering the opinion of the court in that case said: i“It is certainly most just and reasonable, that consequences 'which the servant or workman must have foreseen on entering into an employment, and which due care on the part of the employer or master could in no way prevent, should not be visited on the latter. But it is otherwise where injuries to servants or workmen happen, by reason of improper and defective machinery and appliances used in the prosecution of a work. The use of these they could not foresee. The legal implication is, that the employer will adopt suitable instruments and means with which to carry on his business. These he can provide and maintain .by the use of suitable jare and oversight, and if he fails to do so, he is guilty of a breach of duty under his contract, for the consequences of
In Ford v. Fitchburg R. R. Co., 110 Mass. 240, it was held, that whore an engineer employed by the defendant to drive a locomotive over its road was injured by an explosion caused by a defect in the engine, which was due to the neglect of the defendant’s agents who were charged which the duty of keeping the engine in proper repair, although the directors and superintendent had no reason to suspect negligence or incompetency on the part of its agents, the defendant was held liable for the damages sustained by the plaintiff by such defect in the engine. In this case the defendant insisted, that as the master mechanic whose duty it was to keep the engine in repair, was a fellow-servant of the plaintiff, the defendant was not liable for the negligence of the master mechanic in failing to keep the engine in repair, but it was held liable for the injury caused by such negligence; and the court held the rules of law to be well settled, that a servant by entering his master’s service assumes all the risks of that service which the master exercising due care cannot control including those arising from the negligence of his fellow-servants; but that the master is bound to use ordinary care in providing suitable structures and engines, and properservants to carry on his business, and is liable to any of their fellow-servants for his negligence in this respect.' This care he can and must exercise in procuring, keeping and maintaining such servants, structures and engines. If he knows, or by the exercise of due care, might have known that his servants, structures or engines are either at the time of procuring them, or at any subsequent time, he fails in his duty; and he cannot divest himself of this duty of having suitable instruments of any kind, by delegating to an agent their employment or selection, their superintendence or repair.” And in a subsequent part of his opinion the learned judge adds: “The rule of law which exempts the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants does not excuse the employer, from the exercise of ordinary care, in supplying and maintaining suitable instrumentalities for the per-.
In Fike, Ad’mr, v. Boston & Albany R. R. Co., 53 N. Y. 549, where the plaintiff’s intestate who was a fireman on a freight train of the defendant, was killed by a collision with part of another freight train of the defendant, which had been negligently sent out by its despateher of trains without a sufficient number of brakemau, and having broken in two, on a steep grade, the hinder half of the train became unmanageable, and ran down the grade and thus caused the collision, the defendant was held liable.
In C. & N. W. Railway Co. v. Taylor, 69 Ills. 461—where the switch-tender while attempting to make a flying switch was killed by the advancing car, on which there was no light at the front end of the cars, and it was otherwise too dark to see them — the railroad company was held liable; and Chief Justice Bruce delivering the opinion of the court said the “railroad company impliedly contracted with the deceased that it would use due care in providing such machinery, apparatus and appliances, and other necessary means suitable and proper to the prosecution of the business in which its servants were engaged, so as to insure a reasonable degree ot safety to life and security against injury.”
In the case of Chicago & N. W. Railroad Co. v. Jackson,
In the case of Toledo & Wabash R. R. Co. v. Ingraham, 77 Ills. 309, the circumstances of the case were almost identical with those in Chicago & N. W. R. Co., 55 Ills., supra, and the court again held the defendant liable, although there was no proof that there was any visible defect in the ladder or that the plaintiff had ever seen that car before the time the accident occurred.
The case of Brann v. The C., R. I. & P. R. Co., 53 Iowa 595, was one similar in all respects to the one under our consideration. The plaintiff was in the employ of the defendant as a brakomau on one of its freight trains. On one of these cars was a ladder and also a hand-hold for the purpose of aiding the employes to reach the ladder ascending or descending. The hand-hold was out of repair; “the defect was a loose bolt or screw on one end that assisted in retaining the hand-hold in position.” The car had been taken into the defendant’s train at Beverly, Mo., on the 12th of October, 1876, from a connecting road, and was taken to Chicago and it was on its return trip on the 17th of October when the accident occurred. There was no evidence that the defendant had any car inspector either at Chicago or between that place and Beverly. In this case there were verdict and judgment in favor of the defendant under the ruling of the trial-court. But the supreme court reversed this judgment and held, “that it is the duty of a railroad company not only to furnish reasonably well constructed and safe machinery and appliances for the use of the employes operating its road, but to exercise a continued supervision over the same to keep them in proper repair; that the duty of inspection is affirmative and must be continuously fulfilled and positively per
This question was before the Supreme Court of the United States in the case of Hough v. Railroad Company, upon a writ of error from the circuit court for the Western District of Texas. The suit was brought by the widow and child against the Pacific Railway Company to recover damages on account of the death of W. C. Iiough while in its employment as an engineer. The engine coming in contact with some animal was thrown from the track over an embankment whereby the whistle was knocked oft or blown from the boiler, and from the opening thus made, the deceased was scalded to death. The negligence alleged was that the whistle was insecurely fastened to the boiler and that the engine was thrown from the track because the cow-catcher was defective and that these defects were owing to the negligence of the defendant’s master mechanic and of the foreman of the round-house at Marshall, to whom was committed the exclusive management of the defendant’s motive power, with full control over the engineers; that all these defects were made known to him and that he promised to repair them, which he failed to do. The principal ground of defence was that if any of the alleged defects existed, it was because or the negligence of the master mechanic aud the foreman of the round-house, for which negligence the company claimed it was not liable. The evidence tended strongly to show the facts to be as alleged by the plaintiffs, and that the defects were caused by the negligence of the .defendant’s master mechanic and foreman. Upon this state of facts the circuit court, in effect, instructed the jury that they must find for the defendant. Harlan, Justice, delivering the opinion of the Supreme Court, of the United States, after a full review of the leading-cases in many of the State courts, and in the courts in England, says, “A railroad corporation may be controlled by
To entitle a brakcmati to recover of a railroad company damages for an injury sustained by him while in its employ, the burden is upon him to show the negligence of the company. But he is not bound to do more than to raise a reasonable presumption of negligence on the part of the company. Greenleaf v. C. Ill. R. R. Co. 29 Ia. 14. Shear. & Red. on Negligence, sec. 99.
From an examination of the authorities, the reasoning of j the judges, as well as upon sound reason, and considerations iof public policy, ive conclude that it is the duty of a railroad |company, not only to furnish reasonably well constructed land safe machinery and appliances for its cars, for the use of . its employes engaged in operating its road, but also to oxer- ; cise continual supervision over the same to keep them in good and safe repair; and that ii cannot dicestitself of duty, nor relieve itself from responsibility for its non-performance, by ¡delegating it to any subordinate officer or servant in any of ’its departments; and if it does delegate this duty to any of
If such company or its servant to whom it has delegated the performance of said duty suffer such machinery, cars or appliances, either from long continued use or any other cause to become unsound, unsafe or defective, and this unsoundness, and defective condition, are known to the company, or by the exercise of due care and diligence, it might have become known -to it, and injury therefrom results to one of its employes, without any fault of his while in the performance of his duty, the company is responsible to such servant for such-injury; and that to guard against accidents resulting from such defects in its machinery, cars and appli-anees, it is the duty ot the company to have the same continuously inspected by persons competent to perform that duty. And, as the company must act through its agents and employes, the negligence of the employe, charged with the duty of inspection, or of the master mechanic charged with the duty of keeping the machinery, cars and appliances in repair, is the negligence of the railroad company itself; and a brakeman on one of its freight trains, and such inspector or master mechanic, cannot be regarded as feUcno-servants, in such a sense, as to prevent the brakeman from recovering of the corporation for an injury sustained by him because of the negligence of such inspector or master mechanic. -
If therefore one of the brakemen in the employ of a rail-! road company while in the discharge of his duty, and without any fault on his part, is injured by the breaking loose, or giving wajr of a hand-hold, or any other appliance attached to its ears, and used to assist such brakeman in the performance of his duty, and such defect was one that could have been discovered by a careful inspection of the car, and repaired, such railroad company is liable to such brakeman for the injury sustained by him although the proximate cause of the injury vras a result of the negligence of the inspector or the master mechanic, charged with the duty of and keeping such hand-hold in repair.
It follows from these deductions that the defendant in the case under consideration, at the time the plaintiff’s intestate
There is nothing in the case to indicate that the verdict was not fully warranted by the evidence, or that the jury was actuated by partiality, prejudice or passion, without which this Court could not disturb it because it was excessive in amount. The deceased was a young man, of robust health, in the prime of life, having a wife and three young children dependent upon him for support, a faithful and obedient servant of the defendant, in the discharge of his duty, without any negligence on his part, almost instantly killed, by the giving way of a defective hand-hold, which it was the duty of the defendant to have discovered and repaired. We are therefore of opinion that the verdict was not excessive' in amount, and was fully warranted by the evidence, and that the circuit court did not err in refusing to set the verdict aside for that cause.
From the principles of law hereinbefore announced, we are of opinion that the instruction given to the jury on the motion of the plaintiff correctly propounded the law, and was rightly given. The first, third, fourth and sixth, asked for by the defendant were clearly erroneous, in the form proposed, and were properly refused. The modifications of the second ancl fourth, given to the jury correctly propounded the law, and they were properly given to the jury. The defendant’s fifth instruction, in the form proposed, was clearly erroneous, because it wholly ignored the duty of the defendant to provide the deceased with sufficient and safe machinery and appliances to be used in the course of his employment, and also because it indicated to the jury, that if the defect in the hand-hold was latent, and not discernablo by ordinary care and were unknown, the defendant was not liable, when, as we have
Affirmed.