No. 14998 | Wash. | Jan 10, 1919
The appellant, a track laborer in the employ of the respondent, received personal injuries while engaged with other workmen in loading steel rails upon a flat car. It is conceded that the respondent was a common carrier of interstate commerce by railroad, and that the work in which the appellant was engaged was in the prosecution of the carrier’s business as such an interstate carrier. The appellant brought this action under the Federal employers ’ liability act (Act April 12,1908, c. 149, 35 U. S. Stat. at Large, p. 65 [U. S. Comp St., §§ 8657-8665]) to recover for his injuries. At the trial of the case at the close of his evidence in chief, the respondent interposed a challenge to its legal sufficiency, which challenge the trial court sustained, entering a judgment dismissing the action. The appeal is from this judgment, the question presented being the sufficiency of the evidence to make a case for the jury.
While the witnesses vary somewhat in the details of their testimony, there is no substantial conflict between them as to the manner and cause of the accident giving rise to the injury. The process of loading the rails was this: Skids were inclined from the ground to the top of the car. A rail would then be moved from the pile in which it was located to the foot of the skid, when the workmen would take hold of it with their hands and slide it on the skids to within two or three inches of the top, where a pause would be made. This pause was for the purpose of obtaining concerted action in the final push which landed the rail on the car, it being desirable if not necessary to the safety of the workmén, that the rail be pushed over the end
There is some evidence in the record to the effect that occasionally, when the final signal was given, the workmen at one end of the rail would push-that end of the rail over the end of the skid ahead of the workmen at the other end, but it was not in evidence that this fact ever resulted in injury, or was liable to cause injury, to the workmen on the other end. Neither was there any evidence that it was customary or usual for one side to push the rail over on the giving of the first signal, or any evidence that such a thing had occurred in the loading of this car, other than in the instance in which the appellant was injured.
The trial judge in sustaining the challenge to the sufficiency of the evidence rested his conclusion on the
Passing then to the first of the questions suggested, we think it clear that the injury was the result of a negligent act on the part of the appellant’s coemployee. The work in which the workmen were engaged was not work which could be performed by the workmen acting singly. The rails could not be so placed upon the car. Concert of action was thus not only necessary for the successful performance of the work, but was necessary, owing to the cumbersome nature of the material being loaded, to secure the safety of the workmen engaged in it. When, therefore, the men agreed upon a line of action and proceeded with the work in pursuance of the agreement, any departure therefrom by any number of the workmen would be a negligent act, whether wilfully or heedlessly performed, giving a workman injured thereby a right of action against them to recover for such injury; this on the principle that they failed to exercise that degree of care which ordinary prudence required of them under the given circumstances.
It is perhaps unnecessary to cite cases in support of the foregoing conclusion, but acts of a coworkman similar to the act in question were held to be negligent in Cherpeski v. Great Northern R. Co., 128 Minn. 360" court="Minn." date_filed="1915-02-05" href="https://app.midpage.ai/document/cherpeski-v-great-northern-railway-co-7977471?utm_source=webapp" opinion_id="7977471">128 Minn. 360, 150 N. W. 1091; Janssen v. Great Northern R. Co., 109 Minn. 285" court="Minn." date_filed="1909-12-10" href="https://app.midpage.ai/document/janssen-v-great-northern-railway-co-7975131?utm_source=webapp" opinion_id="7975131">109 Minn. 285, 123 N. W. 664, and Meo v. Chicago & N. W. R. Co., 138 Wis. 340" court="Wis." date_filed="1909-03-09" href="https://app.midpage.ai/document/meo-v-chicago--northwestern-railway-co-8189456?utm_source=webapp" opinion_id="8189456">138 Wis. 340, 120 N. W. 344; and infer
The liability of the common employer to answer for the injury depends upon the effect that is given to the Federal employers’ liability act (Act of Congress, April 12, 1908, c. 149). The applicable provisions are §§ 1, 3 and 4 thereof. These read as follows:
“Sec. 1. Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee ; . . .. for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, tract, roadbed, worts, boats, wharves, or other equipment.
“Sec. 3. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or tilled shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
*287 “Sec. 4. In any action brought against any common carrier under or by virtue of any of the provisions. of this Act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” 35 U. S. Stat. at Large, pp. 65, 66 (U. S. Comp. St., §§ 8657-8665).
The effect of the first section is to abolish, in this class of cases, the common law doctrine of nonliability on the part of the master for injuries arising to one of its servants by the negligent act of another, not participated in nor sanctioned by the master. It is also applicable to the appellant’s situation. The respondent is a common carrier by railroad, engaging in interstate commerce. The appellant was one of its employees and suffered an injury while so employed in such commerce, resulting from an act of negligence of other employees of such carrier. Seemingly, therefore, if this section of the act is to be given effect as written, there can be no escape from the conclusion that the facts of the present case, as presented at the time the challenge to the evidence was interposed, showed prima facie a liability on the part of the respondent.
But it is said that this section must be read and construed in connection with the other sections quoted, and, when so read and construed, the conclusion is sustained that no liability was established by the evidence. But it is difficult to see what bearing the quoted sections can have on the question as here presented. The first section of the act deals with that branch of the law of personal injury known as the fellow servant rule, while the other sections deal with separate and distinct branches of the same law,
But the respondent argues, if we have correctly gathered its purport, that the highest Federal court had held that an employee assumes the risk of injury from the negligent acts of his fellow employees. The case cited as supporting the point is Boldt v. Pennsylvania R. Co., 245 U.S. 441" court="SCOTUS" date_filed="1918-01-07" href="https://app.midpage.ai/document/boldt-v-pennsylvania-railroad-99062?utm_source=webapp" opinion_id="99062">245 U. S. 441. In that case the plaintiff’s intestate, an experienced yard conductor, was killed by what was alleged to be the negligent act of a fellow employee. At the trial upon the facts the plaintiff requested the court to charge the jury that “the risk the employee now assumes, since the passage of the Federal employers’ liability act, is the ordinary dangers incident to his employment, which does not include the assumption of risk incident to the negligence of the carrier’s officers, agents or employees.” The trial court declined to so charge, and the case was before the appellate court on the single question whether or not there was error in refusing to give the instruction. The court held that the instruction was properly refused, and while we confess to a difficulty in gathering from the opinion the precise grounds upon which the ruling was rested, it is inferable that it was rested upon the exception to the general rule before stated, namely, that the act of negligence complained of was obvious and fully known to the employee. It is true that, in the concluding paragraph of the opinion, the court says that the request did not accurately state any applicable rule of law, and further, that the “risk held to have been assumed in the Horton Case [Seaboard Air Line R. v. Horton, 233 U.S. 492" court="SCOTUS" date_filed="1914-04-27" href="https://app.midpage.ai/document/seaboard-air-line-railway-v-horton-98173?utm_source=webapp" opinion_id="98173">233 U. S. 492, Arm. Cas. 1915B 475, L. R. A. 1915C 1] from negligence of some officer, agent or employee;
In his brief, counsel for the respondent states:
“The Federal Employers’ liability act, however, does not relieve a railroad employee from the burden of showing some negligence, nor cast upon the employer the burden of liability for accidents- occurring in simple work. In fact, the supreme court of the United States has repeatedly held that negligence must be shown . . .”
If it be meant by this that the injured employee must show actionable negligence on the part of his fellow employee resulting in his injury before a recovery can be had against the common employer, then we agree with the statement; and we find, as we have heretofore attempted to demonstrate, that in this instance the injured employee did show such negligence. But if it is meant to be asserted that negligence on the part of the common employer must be
It is true there is this distinction between the cases cited and referred to and the case at bar: In the cited cases, the injured workman and the workman negligent were in more or less disconnected employments, in which each employee could act separately and in which the employee had his work pointed out by the common employer — such, for example, as an engineer of a locomotive engine injured by the negligent act of a yard worker in failing to close an open switch; while, in the case at bar, the injured employee was acting in concert with his coemployees and doing work requiring their united efforts, the manner of doing which he had a part and parcel in framing. But it would seem that this difference in the facts could hardly make a differ
Our conclusion is that the court erred in sustaining the challenge to the sufficiency of the evidence. The judgment is reversed, and the cause remanded for trial.
Main, O. J., Parker, Mount, and Holcomb, JJ., concur.