105 P. 100 | Utah | 1909
Plaintiff,1 Nick Jachetta, by his guardian ad litem, Raphael Jachetta, brought this action to recover damages for personal injuries sustained by plaintiff in a collision of a train of cars loaded with lumber and bridge timbers, upon which plaintiff was being carried, with two box cars which had been left standing upon defendant’s main line of rail
The material' facts, briefly stated, are about as follows: In the month of February, 1907, plaintiff was in the employ of the Los Vegas & Tonopah Railroad Company in the state of Nevada. The railroad line of defendant passes through-Lincoln county, state of Nevada, and at Los Vegas in said county forms a junction with the Los Vegas & Tono-pah Railroad. Plaintiff, with about three hundred fellow laborers, all under the direction and supervision of John Conway, who was general foreman and assistant superintendent of construction for the Los Vegas & Tonopah Railroad Company, was engaged in constructing the railroad grade and laying the tracks of said company in the state of Nevada. These laborers, including plaintiff, lived in an outfit train of about thirty cars. On or about February 25, 1907, this outfit train and the laborers mentioned, including plaintiff, were transferred along the line of the Los Vegas & Tonopah Railroad to Los Vegas and there turned
On tbe evening of February 27, 1907, tbe outfit train arrived at Leitb, a station on defendant’s road about eighty miles east of Los Vegas. At this time tbe following officials of defendant company were at Leitb: Mr. Wells, superintendent, Mr. Tilton, general engineer, Mr. W. H. Smith, trainmaster, and R. K. Brown, tbe engineer in charge of tbe construction and repair work on defendant’s line of road. Mr. Brown bad charge of and directed tbe rebuilding of tbe washed out roadbed from Leitb to tbe point where tbe collision occurred. He bad general supervision of this outfit train and crew. He directed tbe movements of tbe train and gave instructions to John Conway, who was in charge of plaintiff and bis colaborers, respecting tbe work of reconstruction as it progressed. On tbe night of February 27th, Mr. Brown sent a train loaded with material, in charge of Conductor Frank P. O’Shay, two or three miles east of Leitb, and two box cars loaded with ties and bridge timbers were left upon tbe main track near a point where a bridge bad been washed out from one hundred and sixty to two hundred feet from tbe end of a fifty or sixty degree
The evidence shows that the plaintiff was twenty-six years of age; that prior and up to the time of the accident he was a strong, healthy man, a good workman, and was earning two dollars per day. Since the collision, because of the permanent injuries received therein, plaintiff has been unable to perform work of any kind and has to be watched and cared for by others.
The court, among other things, charged the jury:
“That plaintiff, by voluntarily going upon the train for the purpose of being carried thereon, assumed the risks ordinarily incident to carriage on said flat cars, and you are instructed that plaintiff assumed the risks of injury from the negligence of the locomotive engineer operating said train; but you are instructed that plaintiff did not thereby assume the risk of harm and injury caused by the negligence, if any there was, of the conductor in charge of said train, and, if you find from a preponderance of the evidence that plaintiff’s injury was proximately caused by any negligence on the part of such conductor in respect to the operation of said train and as alleged in the complaint, then your verdict must be for the plaintiff.”
Appellant complains of this instruction and assigns the giving of it as error. The contention made on behalf of appellant is that Conductor Frank O’Shay, who was in charge of the train, and the men riding on the flat cars, including the plaintiff, were fellow-servants. The record shows that at the time the collision in question occurred there was no statute in force in the state of Nevada defining or regulating the relations of master and servant, and that the rule of the common law as to who are fellow-servants prevailed in that state.- There is a conflict in the authorities as to whether
In the case of Daniels v. Railway Company, 6 Utah 357, 23 Pac. 762, it was held that a car inspector was not a fellow-servant with a train brakeman. In this case the court seems to have followed the rule as announced by the Supreme Court of Illinois in the case of Railroad Co. v. Kelly, 127 Ill. 637, 21 N. E. 203. In that case it was decided that a section hand was not a fellow-servant of the engineer of ai construction train. In Webb v. Railway Co., 7 Utah 363, 26 Pac. 981, a car repairer was held not to be a fellow-servant of a switch engine crew. So in the case of Armstrong v,. Railway Co., 8 Utah 420, 32 Pac. 693, it was held that the foreman of a crew employed in switching cars in the yards of the railway company was not .a fellow-servant of a member of another train crew switching cars in the same yards under the direction of another foreman. Likewise, in,the case of Pool v. Southern Pac. Co., 20 Utah 210, 58 Pac. 326, in an elaborate opinion by M-r. Justice Baskin, it was held that a car repairer, who was directed to repair a car standing on the track in the company’s'yards and went under the car for the purpose of making the repairs as directed, was not a fellow-servant of a foreman of a switching crew operating in the same yards. Morrison v. Railroad Company, 32 Utah 85, 88 Pac. 998, was a case in which
Tested by the general rule as declared in these cases, which we have no inclination to depart from,
*479 “The plaintiff was a common track walker engaged in keeping the track in repair so that trains could pass up and down the road in safety. A wreck having occurred, he was sent ahead hy the section boss on a railroad velocipede to notify certain members of the section gang to come and assist in removing the wreck. The engineer and fireman were sent hack west.with the engine and tender to reach a turntable so as to turn around and return to assist in removing the same wreck on the same road on which the plaintiff was working. ... In this case the plaintiff and the engineer were sent on the same errand. They were working to clear the track from a wreck. They both started on the same errand and were working with the same object in view. The plaintiff knew the engine was following him. He was aware of the danger he was in.”
And tbe court says:
“The plaintiff and the engineer were in the same department of labor, working for the same object, under a common master. . . . Bach, on entering the service and undertaking to remove the wreck, took the risk of the negligence of the other in performing their respective services.”
It will tiras be observed that the case was decided upon the theory that at the time of the accident Stephani and the engineer were engaged in the same department of labor, and that Stephani assumed the risks caused by moving trains generally in passing over the road, as one of the ordinary risks and hazards of his employment. In the case under consideration the plaintiff clearly was not employed in, nor was he performing, any service in the same department of labor as the' conductor. Neither plaintiff, nor any of his fellow laborers who were riding on the'flat cars, had anything whatever to do with the operation or management of the train. They did not load the cars nor help make up the train, and were in no sense attaches of the train either as operatives or laborers. The conductor -and the- members of the train crew were governed and guided by certain rules and regulations respecting the management and operation of trains which were separate and distinct from the rules and regulations under which plaintiff and his fellow laborers performed their work. That these two crews of men did not work together or in the same department, even temporarily, is conclusively shown by the evidence of R. K. Brown,.
Counsel for appellant also cites and relies on the case of Owens v. San Pedro, etc., R. R. Co., 82 Utah 208, 89 Pac. 825. In that case a gang of workmen of the same grade were pushing a handcar which they had loaded with lumber. The men were working together, and the handcar was one of the implements used by them in performing their work. One of the men used a two inch by four inch scant-ling for a brake on the car, and in trying to check the speed of the car with this improvised brake the car was thrown off the track. It was held, and correctly so, that the plaintiff assumed the risk, and that the injury resulted from the acts of a fellow-servant. In the case under consideration the men under Conway, including plaintiff, and the train operatives, were engaged in two separate and distinct lines of employment. In the prosecution of the repair work on the road Conway had no authority over O’Shay, the conductor, or any other member of the train crew; nor did O’Shay have any authority over Conway or any of his gang
Appellant also assigns as error the giving of the following instruction to the jury: “You are instructed that the constructing engineer Brown, was not a fellow-servant of plaintiff, but was the vice-principal of the defendant
The court also instructed the jury:
“It is the duty of the master to exercise ordinary care and prudence to furnish its servants with a reasonably safe place in which to perform the labor which devolves upon them by virtue of their employment, and 'generally to provide for the reasonable safety of the servant in the course of the employment, and, if the master fails in the performance of its duty in this particular, it is negligence on the part of the master, and the master is liable to the servant if injury results thereby, if the servant himself is without fault which proximately contributes to his injury.”
Tbis instruction contains a correct statement of tbe law respecting tbe general duties of a master to use ordinary care to furnish his servants with a reasonably'
Appellant has assigned several other errors; -but we do not deem them of sufficient importance to warrant discussion.
The judgment is affirmed, with costs to respondent.