30 Wash. 569 | Wash. | 1902
The opinion of the court was delivered by
This is a personal injury case. On the 2d of January, 1899, the respondent was fireman on train Ho. 13, a mixed passenger and freight train running from Cheney to Coulee City. On this day a snowplow train had been sent ahead of the passenger train to clear the road and prepare the track for the passenger train, and at a point about six miles west of Almira, a station between Cheney and Coulee City, Ho. 13, upon which respondent was firing the lead engine, ran into the snowplow, and respondent was injured by the collision to such an extent that his leg had to be amputated. Suit for $25,000 damages on account of his injuries was brought by the respondent against the Horthern Pacific Bailway Company, which was operating the trains above spoken of. Bespondent joined as defendants with the railway company Erederick W. Gilbert, who was at the time the superintendent of the division of the railroad upon which plaintiff was working, and A. G. Kamm, who was the chief dispatcher employed by the railroad of the division before mentioned. The trial of the cause resulted in a verdict for respondent
The statement of the case by the appellant is very expansive and minute in detail, but we think we have stated sufficient to settle the propositions necessary for the determination of the cause. The complaint alleged negligence in the company in failure to promulgate and enforce ample and sufficient rules for the running of the trains; failure to provide proper machinery and appliances; in running defective locomotives and engines; that the same were nnskillfully equipped, manned, and fitted out; failure to furnish competent servants; an insufficient number of servants; negligently ordering train No. 13 to proceed westerly from Almira station to Coulee City on the night in question; and various other allegations of negligence, and failure on the part of Gilbert and Kamm to prepare, publish, and enforce all necessary rules, regulations, and orders for the running and operation of their trains. A joint demurrer of the defendants was interposed to the complaint on the ground of misjoinder, which was overruled, and on this ruling is based one of the assignments of error.
It is contended by the appellant that there is no joint liability between the railway company and the dispatcher and the division superintendent; that the master cannot be liable together with any of its employees joined in an action based upon charges of this character; and it is' insisted that this court has decided this question in favor of appellant’s contention in Doremus v. Root, 23 Wash. 710 (63 Pac. 572, 54 L. R. A. 649). But we do not
Section 242 of Shearman & Redfield on the Law of Negligence (5th ed.), is cited to support the contention that the master and servant cannot be joined. This and the succeeding section are in reality a discussion of the principle involved in the distinction that has been raised by some courts between the liability of an agent in case of nonfeasance and that of one in case of misfeasance; but in § 248 the rule is thus stated under the title, “Joint Liability of Master and Servant”:
“Wherever a master can be held responsible for the tortious negligence of his servant, the two are generally held jointly as well as severally liable; and if a servant employs a sub-agent, under such circumstances that both the original master and the intermediate employer are liable for the negligence of the sub-agent, they are all jointly and severally liable;”
citing several cases but stating that a different rule prevails in Massachusetts, and probably in Maine. The theory' of the cases holding that there can not be a joint liability is that there is really but one act of negligence; that the negligence can be imputed to the master, not by reason of his being a joint tortfeasor, but by reason of his peculiar relation to his agent; and that public policy holds him responsible for the agent’s acts under the doc
In support of the view that the master can not be joined as defendant in an action against his servant for negligence, where the master is not personally concerned in the negligence either by his presence or express direction, the following are cited: Parsons v. Winchell, 5 Cush. 592 (52 Am. Dec. 745) ; Mulchey v. Methodist Religious Society, 125 Mass. 487; Clark v. Fry, 8 Ohio St. 358 (72 Am. Dec. 590) ; Seelen v. Ryan, 2 Cin. R. 158; Campbell v. Portland Sugar Co., 62 Me. 553 (16 Am. Rep. 503) ; Beuttell v. Chicago, M. & St. P. Ry. Co., 26 Fed. 50; Page v. Parker, 40 N. H. 47; Bailey v. Bussing, 37 Conn. 349. Other cases have been decided since with equally conflicting results.
But without entering into a discussion or an analysis of these conflicting opinions, considering the fact that uni
The next pertinent claim is that the cause should have been removed to the federal court upon the application which was made and the bond which was offered when Kamm and Gilbert were dismissed from the ease. We do not think this contention can be sustained. It is true, under the authorities, if the application is made seasonably, it should be granted, even though it was not made at the commencement of the trial, as was decided in Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92 (18 Sup. Ct. 264), cited by appellant. In that case, however, the plaintiff discontinued as to the resident defendants when the cause was called for trial; but in the case at bar it was the request of the defendants themselves that brought about their dismissal, in opposition to respondent’s contention. This question is distinctly settled in Whitcomb v. Smithson,
“This might have been so if when the cause was called for trial in the state court plaintiff had discontinued his action against the railway company, and thereby elected to prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all the defendants
citing Powers v. Chesapeake, etc., Ry. Co., supra.
“But,” said the court, “that is not this case. The joint liability was insisted on here to the close of the trial, and the non-liability of the railway company was ruled in invitum. . . . The case was prosecuted by plaintiff accordingly, and at the close of the evidence a motion was made to instruct the jury to return a verdict in behalf of the railway company because the evidence did not sustain the allegations of the complaint as to the negligence of that defendant, and the court granted the motion on that ground in view of the rules of the company, which it found To amply cover all the contingencies arising in the-prosecution of the various duties incident to railroad service at the point.’ This was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, pnd without his assent, and the trial court rightly held that it did not operate to make the cause then removable and thereby to enable the other defendants to prevent plaintiff from taking a verdict against them. The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried.”
We think this case is decisive of the question raised, and that no error was committed by the court in refusing to transfer the case to the federal court.
We have examined the record in detail, and, although
“It is shown by the record that trains very often lose' time or actually have to stop between stations. This has*578 been true ever since railroad trains commenced running, and because of this all trains were equipped, as this snowplow train was equipped, with appliances to protect them ahead and in the rear. These appliances are so effective and so easily used that there is no occasion and no reason for a rear-end collision of this sort, except in the instance where the train crews are wholly negligent and careless in the use of the signals, or in the entire failure to use them. It will be noted that there was no careless or negligent use of the signal appliances which were on this snowplow train. They had the appliances, they had torpedoes, they had fuses, and they had lanterns; but, instead of there being a negligent or careless use of them, they did not use them at all. Any one of these signals would have avoided a collision or accident of this sort. A torpedo placed on the track, even though there be but one, is a signal for any following train to stop until it has burned out. There was a conductor on the train, who could have done these things. There was a rear brakeman on the train, who could have done these things; and every single one of these men knew and must have known that train was losing time from the moment that it left Almira; and every one of these men knew and must have known that a fast running passenger train was behind them running in the same direction. It is almost inconceivable under such circumstances, and almost impossible to believe, that these appliances for their protection were not used; but they were not, and thus the injury was caused.”
Like negligence is attributed by the appellant to the managers of both the snowplow train and the passenger train. This charge must be made upon the theory that the fireman was a fellow servant with the conductor of the train, and that, therefore, the negligence of the conductor was the negligence of the fireman. We cannot conceive that it is the duty of the fireman to assume or know that the conductor has not done his duty, — a duty so plain and palpable as is charged upon him by the appellant in this
“The conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and therefore that, for injuries resulting from his negligent acts, the company is responsible. If such a conductor does not represent the company, then the train is operated without any representative of its owner.”
But, whatever may be said of the doctrine of fellow servants in other jurisdictions, under the uniform holdings and announcements of this court the fireman on this train cannot be held to be a fellow servant of the conductors on
It is uniform authority that, if negligence of the master contributes to the injury, he is liable, even though the negligence of a fellow servant was contributory. Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. 493). This principle has been uniformly followed by this court, and was again announced in Ralph v. American Bridge Co., ante, p. 500, where it is said:
“It is also well settled that if the negligence of a fellow servant concur with the negligence of the master, it does not excuse the primary negligence of the master for injury to another fellow servant.”
An investigation of the whole case convinces us that no substantial error was committed in any respect. The judgment is therefore affirmed.
Reavis, O. J., and Pullerton and Anders, JJ., concur.
Mount, J., being disqualified, did not take part in this decision.