188 F. 597 | 6th Cir. | 1911
The writ of error is brought in this case to review a judgment in favor of defendant in error for personal injuries to plaintiff’s intestate, resulting in death. The prominent facts are these:
The plaintiff in error (hereinafter called the defendant) was at the time of the accident engaged in operating a furnace at Dayton, Tenn., for the manufacture of pig iron, purchasing the ore used for that purpose, also maintaining coal mines and coke ovens about three miles from Dayton, together with a small railroad system, consisting of a line from the Dayton yards to the coal mines, and another, about two miles long, from the Dayton yards to the river, and connecting with traffic thereon. There was also connection at Dayton with the tracks of the Cincinnati Southern Railway. The operating of the furnaces (which was the principal business), the railroad, the mines, and coke ovens (coke being required in the manufacture of pig iron), constituted one business, over which there was a general superintendent; there being also a yardmaster, or foreman of the railroad department. The train running between Dayton and the mines was manned by a locomotive engineer, a fireman, a head brakeman, and an assistant brakeman; there being no conductor. The business of this railroad was largely the hauling of coal and coke from the mines to Daytou, and the hauling of emply coal and coke cars, as well as supplies of various kinds, from Davtou to the mines and ovens. Day and night train shifts were maintaired. The first train which left Dayton at 6 o’clock in the morning, and was the first run of the day shift, was called the
The whistle was blown at Dayton as a notice to the miners that the train was about to start. Those living at Morgantown took the train at a certain customary meeting point. At about 4:30 in the afternoon, after the last blast, the miners took the train at Hanging Rock for the return home; that run being the last made by the day shift, and this return train consisting largely, but not always exclusively, of empty coal and coke cars. The miners had nothing to do with either the operation of the morning or the evening train; their actual work having ended when the last blast was fired. The railroad was entirely a private road, and did no commercial business whatever. It carried no passengers, unless the miners are to be regarded such. No passenger cars were carried. From a point at or near Hanging Rock on the main track (where the miners left the train), a spur or tail track, about 300 feet in length, extended to the coal tipple. This tail track had been extended several months before the accident, and in connection therewith a derailing switch put in, in order to throw off the track any runaway car which might escape from the vicinity of the-tipple, and thus prevent the car running upon the main track. Until a few weeks before the accident in question it had been customary to operate the derailing switch in connection with trains passing over it. A few weeks before the accident, however, a new head brakeman was installed. He was not instructed to use the derailing switch, and-did not make a practice of doing so during his employment, which covered the time of the accident to the deceased. On the evening in question the train brought in from Dayton two cars (one fully, the other partly, loaded) which it left at the coal tipple, in connection with a third car standing thereat. On leaving these cars the train passed over the tail track and onto, the main track; the derailing switch not having been set after the passage of the train. The miners (between 200 and 400) boarded the train at Hanging Rock. A few minutes after the train left, the stable boss at the mines, who was also engaged that day in loading coal cars, in company with another employe, pinched two of the cars at the tipple apart from the third, in order to make room for the passage of the mules between the mines and the stables, with the result that the two cars referred to became unmanageable and ran away down the incline of the tail track and upon the main track, overtaking and colliding with the miners’ train, killing the plaintiff’s intestate and several others. Had the derailing switch been set, the accident could not have happened. The plaintiff
. 1. A preliminary question arises over the authority of the administrator appointed by the county court of Rhea county, Tenn. Section 6023 of Shannon’s Code of Tennessee provides that:
“The comity court to be held by the county judge, shall have its regular sessions on the first Monday of each month.”
The order appointing the administrator was made on July 2, 1907. The caption of the order of appointment is as follows:
"Be it remembered that a quorum court was opened and held for Rhea county, at the courthouse in the city of Dayton, Tennessee, on the 2d day of duly, 1907, * * * when the following business was had and entered of record.”
‘‘And the court shall sit from day to day so long as the business thereof may require.”
The county court being one of general jurisdiction over the appointment of administrators, all possible intendments will be made in support of the order of appointment, and only jurisdictional defects appearing on the face of the record can he attacked collaterally. Brien v. Hart, 6 Humph. (Tenn.) 131; State v. Anderson, 16 Lea (Tenn.) 321; Curtis v. Charlevoix County Supervisors, 154 Mich. 616, 656, 118 N. W. 618.
In Gillsliannon v. Railroad, a common laborer on a railroad, while riding oil a gravel train to his place of labor, was injured by a collision, It was held that the relation of master and servant existed between the plaintiff and the raihoad company; the court saying: f
“It tlie plaintiff was by the contract of service to be carried by the defendants to the place for his labor, then the injury was received while engaged in the service for which ho was employed. * * * If it be not properly inferable from evidence that the contract between the parties actually embraced this transportation to the place of labor, it leaves the case to stand as a permisshe privilege granted to the plaintiff, of which he availed himself, to facilitate his labors and service, and is equally connected with it, and the relation of master and servant, and therefore furnishes no ground for maintaining this action.”
In Seaver v. Boston & Maine R. Co., a carpenter employed by the day by a-railroad corporation to work on the line of its road, and carried on its cars to the place of such work without any fare, was held not entitled to maintain an action against the corporation for injuries occasioned to him, while being so carried, by the negligence of those managing the train or charged with the duty of keeping in repair the equipment of the train.
In Gilman v. Eastern Railroad Corporation, where the railroad company was held not responsible to a person employed by it to repair its cars for a personal .injury arising from tiie negligence of a switchman upon a track over which he is carried by the company free of charge, between his home and the place of his work, Justice Gray, speaking of the Gillshaunon and Seaver Cases, said:
“In each of those two, as in this, the plaintiffs work did not begin until his arrival at his destination; and in this, as in those, the work was upon the structures, means, or instruments with which the defendants were to carry on their business of common carriers, the workman paid nothing for his passage, and the object of the defendants in carrying him was to get him to his place of work.”
In McGuirk v. Shattuck, a woman who was employed by a person as a laundress, and who was being conveyed either gratuitously oí-as a part of a contract of employment, from her home to that of her employer in his wagon, was held to be in the service of the employer.
“Although, at the time of the accident the plaintiff’s intestate had finished his work for the day, and he was under no obligation to do any more work for the defendant on that day, it seems to us plain that he was being transported by the defendant as an incident of his employment, and that the relation between him and the defendant was therefore that of master and servant and not that of carrier and passenger. The car was a special car in which only the laborers who were working on that particular job were allowed to ride, and was furnished for the mutual accommodation Of the company and the laborers, and the plaintiff’s intestate paid no fare. The portion of the track where the accident occurred was not open to the public, and transportation over that and the rest of the route was plainly furnished by the defendant to the deceased as a laborer in its employment and not as a passenger. It cannot reasonably be referred to any other relation.”
In Ionnone v. N. Y., N. H. & H. R. Co., where an employé of the defendant railroad company upon the completion of his work was invited to ride in the defendant’s : car to a ■ point near his home, the carriage being gratuitous, it was said:
“The carrying of the deceased, after his day’s work was done, to a point near his home, is, we think, to be regarded not as creating the relation of a passenger, but rather as -a privilege incidental to his contract of service, granted to him by the defendant, of which he availed himself to facilitate his return to his home, and that it was a privilege accorded to him merely by reason of his contract of service.”
In Bowles v. Indiana Ry. Co., it is said:
“The general rule may be said to be that, where an employé is being carried by his employer in the conveyance of the latter to and from the work for which the former is employed, he is regarded not as a passenger, but as an employé; though if he is being carried merely for his own convenience, pleasure, or business, he is a passenger.”
In Kansas Pacific Ry. Co. v. Salmon, the rule of master and servant was applied to; the case of a person in the employ of the railroad company riding from his nome to his employment in the caboose car attached to a freight train, without paying fare, according to.the custom and understanding of the parties, from which cars and trains all persons except the employes /of the company were excluded.
In Wright v. Railroad Co., the rule was applied to the case of a 'section master, who, after his day’s-work, rode on a train to his lodging place without paying or being expected to pay his fare. In all or nearly all of the cases we have thus far cited, one or more of the Massachusetts cases referred to are cited with approval.
In Birmingham Ry. Co. v. Sawyer, it was held that a section hand, injured while riding back and forth to work on a car, without charge, pursuant to a rule of the company, is not a passenger, but is in the exercise of a mere privilege connected with his employment.
In Tunney v. Midland Ry. Co., the rule was applied to the case of a laborer employed by a railway company to assist in loading a “pickup train” with materials left by plate layers and others upon the line;
Cremins v. Guest, etc., Ltd., and Gane v. Colliery Company, involved awards under the workmen’s compensation act, and in both the question whether plaintiff was in the course of his employment was involved. The Cremins Case turned upon an implied agreement with the colliery company that he should have the right to travel between his home and the colliery free of charge. In the Gane Case, among the acts enumerated as within the contract of employment, was “taking a train, which he (the collier) is entitled to use by virtue of his contract of service.”
The Supreme Court of the United States has not passed upon the specific question involved here, although some of its decisions have more or less bearing thereon.
In Martin v. Atchison, T. & S. F. R. Co., 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051, the fellow-servant rule was applied to the case of a common laborer who was injured by being run into by a train while on a hand car on the road proceeding to his place of work.
In Texas & Pacific Ry. Co. v. Bourman, 212 U. S. 536, 29 Sup. Ct. 319, 53 L. Ed. 641, the fellow-servant rule was applied to a section hand who, after being engaged in clearing up a wreck, was taken aboard an express train to be conveyed to the station at which he lived, and being injured while on the train by the alleged negligence of the engineer of the train and his own foreman.
In 4 Elliott on Railroads, § 1578a, it is said:
“As to whetlicr an employé riding on a ti*ain is a passenger there is some conflict: hut the rule seems to be that if he is being carried to and from his working placo he is not a passenger, but if he is carried for his own convenience or business he is a passenger.”
See, also, Labatt on Master & Servant, § 624.
Several cases are cited in support of the contention that the deceased occupied the relation of passenger. All but one of these cases are distinguishable in their facts from the case presented here, and nearly all are reconcilable with the authorities we have cited. For example:
In Whitney v. N. Y., N. H. & H. R. R. Co. (First Circuit) 102 Fed. 850, 43 C. C. A. 19, 50 L. R. A. 615, in which the employé was held a passenger, it was said:
“He (the employé) stipulated, not only for an increase of wages, but also for free transportation to Boston from the city where he was to be employed, for his own convenience, and not in connection with going to or from his work. He was injured while on one of these trips to Boston and while not going to and from his work, and while he was not employed; that is to say, during the hours when he was free for recreation or to visit Ills family, or to use his time for any purpose of his own.”
Philadelphia & Reading R. Co. v. Derby, 14 How. 468. 14 L. Ed. 502, does not involve the -status of an employe while riding gratuitously.
In Packet Co. v. McCue, 17 Wall. 508, 21 L. Ed. 705, a man standing on a wharf was hailed by the mate of a boat to assist in loading goods upon it. After completing his work he was paid at the office on the boat. While going ashore he was injured by the negligence of the boat’s employés handling the gang plank. Whether the employment ceased after payment for the service was made and before the wharf was' reached was held a question of fact for the jury.
In Doyle v. Fitchburg R. Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335, and Id., 166 Mass. 492, 44 N. E. 611, 33 L. R. A. 844, 55 Am. St. Rep. 417, the injury occurred while the employé was riding upon his own personal business, on a ticket given him as part of his compensation, under which he was at liberty to use the ticket whether going to and from his work or not.
In Dickinson v. West End St. Ry. Co., 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284, the motorman who was held to be a passenger was traveling free at a time when he was not on actual duty, under a rule permitting such. employés to ride at any time or place, and for any purpose, if in uniform.
In O’Donnell v. Alleghany Valley R. Co., 59 Pa. 239, 98 Am. Dec. 336, the carpenter, who was held a passenger while traveling between his home and his place of work, received a less price per day than if he had paid his fare.
In McNulty v. Pennsylvania R. R. Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721, the case was said to be in its controlling features “on all fours with O’Donnell v. Railroad Company.”
The case of Louisville & N. Ry. Co. v. Scott’s Adm’r, 56 S. W. 674, 22 Ky. Law Rep. 30, 50 L. R. A. 381, seems to have turned largely upon the proposition that the conductor accepted the deceased as a passenger.
In Abell v. Western Maryland R. Co., 63 Md. 433, 445, the deceased was riding on a pass which, as said by the court, “was no part of the contract between Abell and the railroad. The contract between them was to pay a certain sum for a day’s work. It was given as a mere gratuity, and as other passes are given.”
In Enos v. R. I. Suburban Co., 28 R. I. 291, 67 Atl. 5, 12 L. R. A. (N. S.) 244, in which a railroad flagman, who received for his services a weekly sum of money plus 14 transportation tickets good on the defendant’s road, was held a passenger while riding to his home upon one of the tickets, it is fairly inferable from the opinion, although not expressly stated, that the tickets were good elsewhere than between the place of work and the home, and that they were not limited to use while going to or returning from work. Nor does it affirmatively appear that the wages would be the same were the tickets not given; the court saying:
“The plaintiff! earned 14 tickets as well as $8 per week, and the fact that the tickets were purchased by work, instead of cash, is unimportant.”
“The weight of authority and of sound policy, we think, is that whore a servant performs all his work at a fixed place, and the master, either by custom or as a gratuity, carries him to and from his work, the servant doing no service for the master on the train, he is to be treated as a passenger.”
We think, however, that the authorities do not sustain this proposition as applied to the case we are considering.
The facts in the New Etna Coal Company Case are substantially the same as those in the case before us; and were we to follow that decision we should be compelled to hold that the deceased was a passenger. The decision in the New Etna Case seems to rest largely upon two propositions: First, that an employé traveling for a purpose wholly disconnected with his employment, and while not engaged in the master’s service, upon free transportation furnished him by the master in consideration of his being an employé, occupies, while so traveling, not the position of a servant, but a passenger; and, second, that there is a clear distinction between cases where the servant performs all his duties at a given place and cases where the servant in the necessary performance of his duties, and while in the performance thereof, is transported by the master from place to place, wherever his services may be required. We think that, under the authority we have cited and the facts of this case, the carriage of the deceased cannot be said to have been wholly disconnected from his employment, but that it was, on the other hand, in a very proper sense, connected therewith, contemplated thereby, and incident thereto; and while the case of the servant who is being transported by the master from place to place, wherever his services may be required (such as section hands, cm-ployés on work trains, and those having charge of structures or operations along the line of the road), is not identical with that of one who performs all his duties at a given point, yet we think the legal distinction referred to is not recognized by the authorities generally.
In Louisville & Nashville R. Co. v. Stuber, 108 Fed. at page 936, 48 C. C. A. 151 (54 L. R. A. 696), Judge (now Mr. Justice) Eurton, speaking for this court, called attention to the fact that:
“Under the decisions of the Tennessee Supreme Court, the liability of a railroad company to one servant who has sustained injury through the negligence of another has been made to depend upon the subordination of the one to the other, as well as upon refinements, in respect to different departments of service.”
There is, in our opinion, nothing in the decisions of this court in Ellsworth v. Metheney, 104 Fed. 119, 44 C. C. A. 484, 51 L. R. A. 389, Winters v. B. & O. R. Co., 177 Fed. 44, 100 C. C. A. 462, Dishon v. Cincinnati, N. O. & T. P. R. Co., 133 Fed. 471, 66 C. C. A. 345, or Huntzicker v. Illinois Central R. Co., 129 Fed. 548, 64 C. C. A. 78, supporting the proposition that the status of the deceased in the case we are considering was that of passenger. On the contrary, there are expressions in Ellsworth v. Metheney and Huntzicker v. Illinois Central R. Co. not in harmony with such conception. For an interesting review of decisions upon the question before us, see the opinion of Judge Cochran in Dishon v. Cincinnati, N. O. & T. P. R. Co. (C. C.) 126 Fed. 194, and the reference thereto in the opinion of this court, 133 Fed. at page 477, 66 C. C. A. 345.
In Louisville & Nashville R. Co. v. Stuber, supra, the plaintiff was foreman of water supply on a division of the defendant’s railroad; his business being to supervise the tanks and pumping machinery at the water stations and keep the same in repair, in the performance of which duties he was required to ride over the road from station to station, being furnished with a pass good on all trains. While he was riding on a detached engine to a station where his services were required, he was injured in a collision caused by the negligence of the engineer in charge of such engine. In holding that the plaintiff was not a passenger, Judge Lurton said:
“His transportation to and from his place of work was part of his contract of service, and while being thus transported he was as much in the service of the company as when engaged in the repair or construction of a water tank or pump.. He was traveling at the time under a single contract of service, and His right to be carried free to and from his work is inseparable from the contract to do the work, and no valid ground exists for saying that he paid his own fare, or was in any sense a passenger.”
The facts in the Stuber Case are thus not identical with those presented, here. But, following the proposition just quoted, Judge Lur-ton said:
“The rule is now well settled that railway employes, while being carried, as part of their contract of service, to and from their place of work, are fellow servant's, and not passengers” — citing with approval, among other cases, Gillshannon v. R. R. Corporation, 10 Cush. (Mass.) 228; Seaver v. R. R. Co., 14 Gray (Mass.) 466; Vick v. R. R. Co., 96 N. Y. 267, 47 Am. Rep. 36, and Tunney v. Ry. Co., L. R. 1 C. P. 291.
The cases of Doyle v. Railroad Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335, Id., 166 Mass. 492, 44 N. E. 611, 33 L. R. A. 844, 55 Am. St. Rep. 417, McNulty v. R. R. Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721, and State v. Western Maryland R. Co., 63 Md. 433, were there distinguished by Judge Lurton as “cases in which it appeared that at the time of the injury the employe was not in the service of the company, but. was traveling for his own purposes, and therefore a passenger.” The right to ride on the train in question was, in our opinion, an
It follows from this conclusion that the case was submitted to the jury upon an erroneous theory, under which recovery was permissible for the negligent acts of coemployes. This error requires a reversal of the judgment.
5. Upon the subject of the assumption of risk, the jury was instructed that, if the officers and agents of the company were negligent in the discontinuance of the use of the derailing. switch, then the inquiry would be “whether the deceased, Huff, knew of the discontinuance of this switch, and whether a man of ordinary intelligence should have appreciated the dangers that would result from a failure to keep up the use of the derailing switch. If you find from the weight of the proof that the deceased, Huff, knew .that the use of the derailing switch was not kept up, and knew, as a man of ordinary intelligence, and appreciated the dangers to be apprehended from the fact, * * * ” such fact would be a complete defense to the allegation
For the errors above pointed out, the judgment will be reversed, and a new trial ordered.