This case, in one form or another, has been before this court several times.
The appellant the Omaha Eailway Company held a contract or lease from the Great Northern Eailway Company giving it the'right
The Union Depot Company is a corporation maintaining a depot for the benefit and convenience of the various railway companies entering the city. It has its own officers and employeеs, one of whom was the defendant Wood. On April 19, 1906, the.Great Northern Company had completed upon its own right of way á track vyhich en7 tered the depot grounds about one thousand feet west .of the point already described, where its tracks used by the Omaha Company connected with the depot tracks. It thereupon broke that connection^ аnd placed what is known as a puzzle switch at th.e new point, and directed the Depot Company to send over this new track trains, which had formerly left the depot grounds at the center of Third street. The evidence tends to establish the fact that the switch itself ‘was. upon the Great Northern property, but was operated by the employees of the Depot Company. The general superintendent of the Omaha Company testified he never knew of this change, nor was there any evidence that any one connected with that company, except its train' employees, had actual knowledge of the situation. As, its name' implies, the puzzle switch is quite complicated. This particular one was difficult-to operate, and, unless care was taken to, firmly, secure
On the evening of May 9, 1906, the plaintiff, a switchman in the employ of the Omaha Company, was lawfully upon a switch engine attached to one of that company’s passenger trains leaving the Union Depot for Minneapolis. Wood, the switchman in charge of the puzzle switch, threw the lever for the purpose of adjusting it so as to send the train upon the new track of the Great Northern Company, after which he signaled the train to advance, and the engine and forward trucks of the mail car were derailed at the switch. The plaintiff was thrown or jumped from the engine, was caught under the wheels of the tender, and permanently injured.
The plaintiff claims that the defendant Wood was negligent in failing to force home and secure the lever. The appellant railway contends that the plaintiff is not entitled to recover against it: (1) Because the accident occurred upon the property of the Great Northern Railway Company at a place not included within the terms of the contract between it and the Great Northern; (2) that the sending of the Omaha train over the switch described was an unauthorized and wrongful act of the Depot and the Great Northern companies, and was done without the knowledgе or consent of the appellant the Omaha Company; (3) that Wood was not its servant, and, therefore, not a fellow servant of the plaintiff, and the appellant is not responsible for his negligence. Both appellants contend that the evidence was not sufficient to sustain a finding that Wood was negligent.
Fairly construing the charge, the jury was instructed thаt under the evidence the location of the switch and new track was immaterial; the fact that the officers of the Omaha Company had no knowledge of the change in the tracks was also immaterial, if the employees of that company operating its trains had such knowledge; and, finally, that if Wood’s negligence caused the accident the appellants were each responsible in damages to the plaintiff, because the plaintiff and the switchman were fellow servants. By various requests for directions on the trial, exceptions duly taken, and assignments of error on this appeal, the appellants have challenged each of these instructions.
1. The appellant is a railroad comрany operating a large general system of railways. It is a matter of common knowledge that a company so situated has necessarily to make contracts with other companies involving the use of roadway, equipments, and appliances by one belonging to the other. The ordinary employees of the company are not instructed concerning the details of such contracts, or required to inform themselves upon them, and if, in the regular course of the running of its trains the appellant company acquired the right to and did use the tracks of other railway companies, and sent the plaintiff out upon these tracks, it is difficult to see how it relieved itself from any of the duties which it owed tо the plaintiff as his master. The testimony showing the course of business adopted by the Omaha and Great Northern Kailway companies for the joint use of the Great Northern tracks is not sufficient to show that the change made in the tracks by the Great Northern Company was so unauthorized, or so far violated the contract between them, as they themselves had construed it, that the appellant company was under no responsibility to the plaintiff while its train was upon that track.
Since the original contract was so made between the railway companies which were the respective predecessors of the present parties to it, a large number of tracks have been constructed in and about the place referred to. It is almost inconceivable that the Great Northern Company would, without notice to, and in violation of its contract with, the Omaha Company, tear up one set of tracks and construct entirely new ones, unless it believed that, so long as it furnished sufficient trackage to the Omaha Company to enable it to
2. The switch where the accident occurred was operated by an employee of the Union Depot Company, under the direction of that company, and was an instrumentality used in connection with the transaction of business conducted by the depot company. We think, therefore, that the trial judge was justified in instructing the jury that it was immaterial whether the switch and tracks leading frоm it were located upon the grounds of the Depot or Great Northern companies.
3. The jury was instructed that the appellant company was responsible for any negligence upon the part of the switchman Wood; that he was a fellow servant of the plaintiff. The fact that the trial judge stated that the plaintiff and Wood were fellow servants is immaterial, if for any reason the Omaha Company was so responsible. Having been' directly instructed that the appellant was under that responsibility, it can hardly be presumed that the jury concerned itself with the legal definition of the relation existing between the two men. The propriety of this entire instruction must be determined by ascertaining whether or not the railway company is so responsible, notwithstanding the fact that Wood and the plaintiff
This brings us to what we understand to be the main contention ■of the appellant company. Counsel have cited a large number of ■cases holding that persons occupying the relative positions held by Wоod and the plaintiff at the time of this accident are not fellow ■servants. Most of those decisions were rendered in cases where the ■employee of one company was injured through the negligence of'an ■employee of another company, and where the injured person sought to hold the master of the negligent servant. In all those cases it was held that those employees were not fellow servants; that, the ■one injured being-lawfully upon the premises of the master of the negligent servant, the master was responsible, and could not escape such responsibility by claiming that his negligent employee and the person injured were fellow servants. Smith v. New York,
The authorities cited by appellants hold, and we agree, that these two men were not fellow servants within the meaning of that term when the common-law rule, as to the nonliability of the master for injuries received by a servant through the negligence of a co-employee, is.invoked to avoid liability. Eellow servants, in that sense, are those who not only are engaged in the same general employment, but who also have a common master. The rule was based upon the theory that the servant in entering the master’s employment assumed the risk of being injured through the negligence of another servant, whose conduct and demeanor he had a better opportunity of observing than had the master. Primarily the master was liable for injuries suffered by any person through the negligence of his servants; but to this the courts added the doctrine that, if such injuries were received by a fellow servant of the careless employee, it must be presumed that such carelessness was one of the risks assumed. The limited sense in which the term “fellow servants” is thus used is indicated very clearly in Wood’s Law of Master and Servant, §§ 435, 436. It does not follow, however, because the plaintiff and the switchman were not
The Union Depot Company, while a separate legal entity, was shown by the testimony to be the common servant of all the railroads running passenger trains into the depot. It cannot be said to occupy the position of an independent contractor; for, while it furnishes the depot and grounds and generally dictates upon which track a particular train shall go, each railroad company through its own employees retains control of some part of the operation of each train. That the depot company was brought into existence by the railroad companies for their convenience, and is under the joint control of the railroads using it, is sufficient to show that it is not, in this case, to be considered an independent contractor, but rather in the common employment of the Omaha and the other railway companies. State v. St. Paul Union Depot Co.,
A corporation can only act through human beings. It was the duty of the depot company to operate the switch in question, and it operated it through the switchman Wood. Ilis act was the act of the depot company, performed by him in the regular course of his employment, pursuant to the instructions he had received from his superior officers. His negligence was thе negligence of the Union Depot Company. That company was the servant of the Omaha Railway Company, and the conclusion is unavoidable that under the circumstances of this case the appellant railway company is liable to the plaintiff for the injuries he received, if the accident was caused by the' negligence of the switсhman Wood. Kastl v. Wabash,
Abundant authorities hold that, where the passenger of a company leasing trackage rights from another railway is injured through the negligence of an employee of the lessor, he may recover from the
4. The evidence was sufficient to sustain a finding that Wood was negligent. It was shown that the switch was difficult to operate; that great force was required to bring the lever home; that a metal dog, or catch, was attached, which was intended to fasten and hold the lever when placed; that if the lever was not forced home, and if not caught and held by the dog, the rails composing the switch were liable to become misplaced from the vibrations caused by passing trains. After the accident, the lever was found at an angle of about forty-five degrees. The switchman Wood testified that he had placed the entire weight of his body upon the lever for the purpose of forcing it home, and believed that he had done so; but he admitted that, although he knew of the existence of the dog or catch, he did not ■observe, and did not know, whether it had actually fallen into position, or caught, at the time in question. The switch was one requiring careful operation. Wood knew that its operation was difficult. He knew that it was supplied with means by which the lever could be fastened. Without satisfying himself that the lever had been so fastened, he signaled the train to advance, which it is presumed it would not have done in the absence of .his affirmative action. The derailment of the engines was just what might be expected if the rails of the switch were not properly adjusted. This was sufficient evidence to sustain a finding of negligence upon the part of Wood.
Order affirmed.
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