133 Mich. 192 | Mich. | 1903
The defendant has brought error on a judgment for $4,000, recovered by the plaintiff for personal injuries received while loading rails upon a moving train. The negligence relied upon is:
.1- That he was inexperienced in such work, and was given no instructions how; to do it, nor any warnings against the danger of a rail falling off after it was thrown upon the moving car.
2. That the work was done in such haste as to make it unnecessarily dangerous.
The defendant contends that the court should have said to the jury:
1. That the method of loading the rails was not negligent.
2. That the plaintiff assumed the risks of the employment.
*194 3. That the plaintiff’s injury was caused by his own negligence.
4. That, if any other persons were guilty of negligence which contributed to cause the accident, they were fellow-servants of plaintiff, for whose negligence the defendant is not liable.
There is much testimony tending to show that the general method adopted of loading these rails — i. e., upon moving cars, with gangs of men taken from section gangs — was the ordinary method of doing such work, where the rails have been obtained from taking up an old track. We think there is no proof to the contrary, and therefore, so far as defendant’s general method, adopted in this instance, is concerned, it was not shown to be negligent. We do not overlook the case of Palmer v. Railroad Co., 87 Mich. 281 (49 N. W. 613), which is said to be on all fours with this case. We think that case does not hold that in all cases a court must leave to the jury the reasonableness of this method of loading rails, — i. e., loading them upon moving cars, — and that a jury in any and every case may award damages to persons injured if the train is not stopped for the loading of each individual rail. If it could be said that such was the holding, it was at best under the proofs in that case. In another the undisputed proof might show the contrary.
But we think the inference is not warranted. Many more things than the general method are involved in that case. For instance, every one must admit that there is a limit to the ability of men to keep up with*a train, and there is a limit to human endurance, and, should this be passed through the fault of the master, we are not prepared to say that there might not be circumstances under which he should be held liable for the consequences. In the case before us, if it is true that the men were forced beyond their powers of endurance, or ability to keep up or to avoid injury, and the-plaintiff was injured in consequence, the fault was that of some one or more of the defendant’s servants.
The assistant roadmaster testified that he merely happened to go with the train that day to check up the'rails; that the train was in charge of a conductor, and the gang of a foreman. It goes without saying that whoever was in charge of that work owed it to the men to see that they were not overworked through undue haste; but whether the master is accountable of not must depend upon whether such person is to be held a fellow-servant or not. It is claimed that the assistant roadmaster was the vice-principal, and such was the holding in the Case of Palmer, supra, and the company was held liable under the facts in that cáse. Exhaustion, and danger from undue haste in running the train, might be due to the negligence of the engineer or conductor, or it might be due to negligence in the management of the enterprise by a foreman in charge of the job, without any negligence of a vice-principal, if one were present; and, if so, as all were engaged in the common enterprise, the plaintiff could not recover for such negligence, because it would be that of a fellow-servant, which is an assumed risk. Upon this branch the case is
The general rule established in this State is that the-question of whether or not one is a fellow-servant is to be-settled by the nature of the act, rather than the rank of the respective servants. When that rule can b'e applied, it furnishes a comparatively safe guide. Counsel for defendant contend for its application here. On the part of the plaintiff it is contended that there is a class of servants for whose negligence the master is liable, although, if it were the negligence of one belonging to another class of servants, he would not be. This is upon the theory that one who represents the master in the way of general control of the business, as his representative, is his vice-principal, and binds him. It is manifest that this is, in a sense, antagonistic to the former rule, for in a way many servants represent the master, and have, in the division of labor, control, more or less general, in their respective departments, who are called “fellow-servants.” Yet the doctrine exists, and there is much to be said in favor of its application in proper cases. The necessary consequence, however, is a constant struggle for its extension by servants, and a corresponding effort for its restriction by masters, which serves to illustrate the necessity for a consistent rule, which shall make the line of demarkation plain and reasonable, instead of uncertain and arbitrary. But it is not easy to suggest a test which can be safely said to be an infallible one.
In Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240), there is an intimation of the rule contended for by the plaintiff, but it is held that a timberman in a mine does not come within it. It is hinted at in Smith v. Potter, 46 Mich. 265 (9 N. W. 273, 41 Am. Rep. 161), but held that an inspector of cars has not a duty of management or general supervision, and is not within such rule. It was
The case of Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500), extended the rule to one who did not have exclusive and full control of defendant’s business, and applied it to a train dispatcher, who had supervision over the running of trains. Presumably, he did not determine what trains should be sent out, and the case, while well supported by authority in some States, is at variance with decisions in others, and is said to be within the principle of Ryan v. Bagaley, supra, because the train dispatcher is “ given supreme controland it is also, said that “his act is the act of the master.”
In Harrison v. Railroad Co., 79 Mich. 409 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180), an assistant roadmaster took a train to move telegraph poles for some construction or repair work. He personally gave directions to a member of the working gang, who was injured in consequence. It was held that they were not fellow-servants, and it was left to the jury to say whether the injury was the result of his negligence or that of the engineer, upon which liability was made to depend. Id., 79 Mich. 416. The discussion from page 421 to 428 apparently indicates the view that the assistant road-master represented the master.
The case of Palmer v. Railroad Co., 87 Mich. 281 (49 N. W. 613), Id., 93 Mich. 366 (53 N. W. 397, 17 L. R. A. 636, 32 Am. St. Rep. 507), closely resembles the present case.
In Erickson v. Railway Co., 93 Mich. 414 (53 N. W. 393), the doctrine was applied to the foreman of a gravel train. The question was passed over without much discussion, and was said to have been ruled by the Harrison Case. It is difficult to distinguish this case from one involving the negligence of the conductor of any train.
In Morch v. Railway Co., 113 Mich. 154 (71 N. W. 464), a foreman sent in place of a roadmaster was held not to be the alter ego. This case and the Schroeder Case, infra, are distinguishable from most of the others, as the foremen had no general authority or control of a branch of the road or business. They were simply in charge of their respective gangs.
The embarrassment from these decisions was foreseen and indicated in Beesley v. F. W. Wheeler & Co., 103 Mich. 203 (61 N. W. 658, 27 L. R. A. 266), where the question was reserved, and Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354), where the authorities are discussed. In the latter case a foreman was held not to be the alter ego.
It will be seen from this review that the assistant road-master is within the rule contended for by the plaintiff, and, if the negligence was his, the master was liable. The jury so found, and it was not error on the part of the learned circuit judge to submit the question.
We cannot say that the undisputed proof shows plaintiff to have been guilty of contributory negligence, and no authority is cited to the proposition that, “if any fellow-servant was guilty of any negligence which contributed to the accident, defendant is not liable.” Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500). We are not certain that counsel intended to be understood that a plaintiff is affected by contributory negligence of a fellow-servant. If not, their contention is probably satisfactorily disposed of by our holding that, if the negligence-of the engineer alone caused the accident, without fault on the part of the assistant roadmaster, the plaintiff could not recover. See Harrison v. Railroad Co., 79 Mich. 416 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180).
There is no reason to question the general rule that an
Again, while the general method of loading rails on moving cars may not be negligent, there may be circumstances under which, and times when, it is not prudent, and when to keep the train in motion might be negligence on the part of the person responsible therefor. In such case the master might or might not be liable, depending upon whether the negligence was that of a fellow-servant or not. A jury should not be given to understand that a master is liable when he is only made so by treating as a part of the general method adopted by the company all of the departures from prudence by those charged with the work. In this case the defendant had a right to send a train to move these rails, in charge of a competent man, without explicitly pointing out the exact method, whether by loading upon moving or stationary cars or prescribing a rate of speed. The management might be negligent or not, according -to what should be done.
The plaintiff claims that the negligence consisted in not warning the plaintiff, and in overtaxing the men by undue speed, for which the person who set plaintiff at work and the assistant roadmaster were to blame. . There was testimony that the train was in charge of a conductor, who controlled the speed by signaling the engineer, and a fore
“That day I was simply on the train keeping tab on my car numbers and the number of rails loaded, so I could make my report. I was busy until they were through loading. I was simply right there with the train, keeping check of my rails and cars. The train didn’t move under my orders. I told the engineer and the conductor that the rails would be loaded while the car was moving. I think I told the engineer to go about a mile an hour.”
This testimony made it possible for the jury to find that the accident was no't due to the assistant roadmaster’s negigence, and that it was ascribable to the engineer. Harrison v. Railroad Co., supra. The charge recognized no such possibility, and left the jury nothing to do but to find a verdict of guilty if the jurors found that an injury resulted from undue speed or an improper method of loading. It is true that the judge told the jury that the plaintiff could not recover if the plaintiff or his fellow-servants were guilty of negligence contributing to the injury, but they were not told who his fellow-servants were, and they may have understood the term to have application to members of his work gang only. There was not a hint that the engineer or foreman was a fellow-servant, yet there is proof that the foreman gave the word to throw when plain, tiff was hurt. In view of these facts, instruction that “the master was represented by James Hamilton, the assistant roadmaster,” and that “the defendant is responsible for the management of the work, and the negligence of management is the defendant’s negligence,” was too broad.
The judgment is reversed, and a new trial ordered.