Lewis v. Seifert, No. 213

No. 213 | Pa. | Oct 3, 1887

Opinion,

Mr. Justice Paxson :

It is clear that if this railroad accident was the result of the negligence of the station-agent at Rockhill, the plaintiff cannot recover, for the reason that said station-agent and the plaintiff were engaged admittedly in the same common employment. Seifert, the plaintiff, was the engineer of No. -71 freight train, and was injured by No. 8 passenger train colliding with it just as it was entering the switch at Rockhill to allow No. 8 to pass. Roth, the station-agent, had been ordered by wire to “ stop and hold No. 8 Express at Rockhill until No. 71 local freight arrives.” When he received the order he proceeded to flag No. 8 with the red signal. This was all he was required to do by the rules of the company in obedience to the telegram. This fully appears by the testimony of Mr. Sellers, the train-dispatcher, who sent the telegram, and who was called as a witness by the defendant company. We mmt look elsewhere for a solution of this difficulty.

It is equally clear that bad no order been sent from Philadelphia there would have been no accident. In the absence of special orders, No. 71 would, under the rules of the company, have taken the siding at Perkasie and have waited until No. 8 passed. The accident was the direct result of the order from the office in Philadelphia to the conductor and engineer of 71, which was as follows: “you will meet and pass No. 8 Express- at Rockhill.” It remains to be seen whether the ■defendant company is responsible to the plaintiff below for the injuries he received in consequence of this order.

The facts briefly stated are as follows :

No. 71, local freight train, with the plaintiff below on board 'as engineer, left Philadelphia at 3:30 A. M. for South Bethlehem, and arrived at Perkasie, two miles and a half south of Rockhill. This portion of the road at that time had but a single track. When No. 71 arrived at Perkasie it was behind time, and it was the duty of the conductor to do one of two things, viz.: either to take the long siding at Sellersville, or wire to Philadelphia for orders. He chose the latter course. He went into the office at Perkasie, called up the Philadelphia office by telegraph, and asked for orders for No. 71. The Perkasie operator was asked by Philadelphia how soon No. 71 would be ready to leave, and the answer was wired back, “ in a few minutes.” Then at 8 :55 A. M. the operator at Philadelphia sent the following telegram to the agent at Rockhill: ■“Agent Rockhill: Stop and hold No. 8 Express at Rockhill until No. .71 local arrives there.” Signed “ W. Bertolette.” Bertolette was the train-dispatcher at Philadelphia, and had full authority to start out and control the trains even to the suspension of the regular schedules. The telegram was signed by Sellers, his assistant, for Bertolette; but that is immaterial. Sellers had the same power as Bertolette, in the absence of the latter.

No. 71 was going North. No. 8 Express passenger train should have left South Bethlehem at 8:30 A. m. It was-delayed for connections and did not leave until about 9. It was behind time as before observed, and having the right of way ran at a high rate of speed. It does not appear that any attempt was made to notify No. 8 of the whereabouts of No. 71, until the order to start the lattter. train had been given. Then an attempt was made to intercept it by calling up the operators along the line above Rockhill, but it met with no response. It was alleged the wires were not working above Rockhill, and there was a dense fog along the line between that place and Bethlehem but none in Philadelphia. No. 8 having the right of way and no warning of danger, kept on at a speed of from 30 to 35 miles an hour, until it reached Rock-hill. The fog prevented the danger signal there from being seen, and No. 8 struck No. 71 just as the latter was entering the switch. When No. 71 arrived at Rockhill, the engineer and conductor thereof observed the signal board at the telegraph office turned in their favor as a signal to enter the siding. As the engine slacked its speed the conductor jumped off and inquired of the operator “'how No.- 8 was?” He was. informed that it had left Quakertown four minutes ago. The distance between the two places was only two or three miles. The conductor then told his brakeman to go and flag No. 8. It was too late. Before the brakeman could proceed any distance the collision occurred.

It will be seen that each of these two trains, running in opposite directions, had the right of way. The train-dispatcher in Philadelphia doubtless expected that No. 71 would be safe on the siding at Rockhill before No. 8 should arrive there. And so it would, had it started at once upon receiving its order. It will be remembered that before issuing the order to 71, the dispatcher asked how soon it would be ready to start. The reply was “in a few minutes.” With the knowledge that 71 could not start immediately, the order was given to proceed. No time was limited. In point of fact, No. 71 did not move for about twenty minutes. The delay was in part caused by the pulling out of a drawhead. No. 71 did not ask for fresh orders before starting, nor was it bound to; it had told the dispatcher it would be ready to start in a few minutes, and. it did so. A “few minutes” is an indefinite period of time, by far too uncertain for railroad purposes.

Just here is tbe pincb of the case. If Bertolette had ordered No. 71 to proceed in five minutes, or if not ready by that time, to take the siding, there would have been no collision. B ut he left the whole matter indefinite, depending upon what the conductor of 71 might regard as a “few minutes,” when a delay of a single minute might involve life or death. In every view which we can take of this case we regard this order as an act of negligence and the proximate cause of the collision.

This involves the further question whether the company defendant is responsible for the negligence of its train-dispatcher. Upon this point the authorities are numerous and far from uniform. A volume might be written upon it and not exhaust the subject. I prefer to state our conclusions without elaborating them to any considerable extent.

The precise question is, whether Sellers, the train-dispatcher, was a fellow workman with the plaintiff, within the meaning of that rule of law which holds that the master is not responsible for an injury received by an employee .caused by the negligence of a co-employee, or fellow workman. That rule rests upon the sound principle that each one who enters upon the service of another takes on himself all the ordinary risks of the employment in which, he engages, and that the negligent acts of his fellow workmen in the general course of his employment are within the ordinary risks: Lehigh Valley Coal Co. v. Jones, 86 Penn. St. 432. To constitute fellow-servants the employees need not be at the same time engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade, and is subject to the direction and control of the superior whose act caused the injury, provided they are both co-operating to effect the same common object: Keystone Bridge Company v. Newberry, 96 Penn. St. 246. Thus, we have repeatedly held that a “ mining boss,” under the act of March 3, 1870, is a fellow workman with the miners, and that the mine owners are not responsible for his negligence: Delaware & Hudson Canal Co. v. Carroll, 89 Penn. St. 374. This, however, is in part owing to the fact that the duty of appointing a mining boss is imposed upon the mine owners by the act of assembly,- hence the responsibility of the latter would seem to cease when they had exercised due care in the selection of that person. Be that as it may, it is well settled that mere difference in rank or grade does not change the rule.

But there are some duties which the master owes to the servant and from which he cannot relieve himself except by performance. Thus, the master owes to every employee, the duty of providing a reasonably safe place in which to work, and reasonably safe instruments, tools and machiney with which to work. This is a direct, personal and absolute obligation; and, while the master may delegate these duties to an agent, such agent stands in the place of his principal and the latter is responsible for the acts of such agent. And where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own, the master is held liable for the negligence of such agent or subordinate: Mullan v. The Steamship Company, 78 Penn. St. 25; N. Y. L. E. & W. R. Co. v. Bell, 112 Penn. St. 400.

It is very plain that it was the duty of the defendant company, as between said company and its employees, to provide a reasonably good and safe road, and reasonably safe and good cars, locomotives and machinery for operating its road. It is equally clear that it was its duty to frame and promulgate such rules and schedules for the moving of its trains, as would afford reasonable safety to the operatives who were engaged in moving them. This is a direct, positive duty which the company owed its employees, and for the failure to perform which it would be responsible to any person injured as a consequence thereof, whether such person be a passenger or an employee. It would be a monstrous doctrine to hold that a railroad company could frame such schedules as would inevitably or even probably result in collisions and loss of life. This is a personal, positive duty; and, while a corporation is compelled to act through agents, yet the agents in performing duties of this character stand in the place of and represent the principal. In other words they are vice-principals.

'If it be the duty to provide schedules for the moving of its trains which shall be reasonably safe, it follows logically that when the schedules are departed from, when trains are sent out without a schedule, such orders should be issued by the company as will afford reasonable protection to the employees engaged in the running of such trains. I am not speaking now of collisions caused by a disobedience of orders on the part of conductors and engineers, but of collisions or other1 accidents the result of obeying such orders.

At the time of the collision referred to, Wellington Bertolette was the general dispatcher of the defendant company, and from his office in Philadelphia had the general power and authority of moving the trains. In this he was not interfered with by the company or any one else. For the purpose of sending out the trains, he wielded all the power of the company. He could send a train out on schedule time or he could hold it back. He could change the schedule time or make new 'schedules as the exigency of the case required. He could send a train out without schedule, and direct its movements from his office in Philadelphia. When he issued an order the train was bound to move as he directed. The engineer and conductor had but one duty and that was, obedience. In Slater v. Jewett, 84 N. Y. 61, the late Chief Justice Folgbr thus clearly stated the duties of railways in this particular: “ It is urged, and with reason, that clearly arranging and promulgating the general time table of a great railway, is the duty and the act of the master of it; and that when there is a variation from the general time table for a special occasion arid purpose, it is as much the duty and act of the master, and he is as much required to perforin it; that it is the duty and act of the master to see and know that his general time table is brought to the knowledge of his servants who are to square their actions to it; that the same is his duty and act as to a variation from it, which is but a special time table; and, therefore, whoever he uses to bring those time tables to the notice of his servants, he puts that person to do an act in his stead, inasmuch as the responsibility is upon him to see and know that it is done, and done effectually, and that if, instead of doing it in person, he choses to do it through an agent, that agent fro hae vice, is the master, and he, the master, is responsible for a negligent act therein of that agent, whereby a fellow servant of him is harmed. This rule has been laid down in repeated cases in this court.”

It is true the order in this case was sent by John J. Sellers. But Sellers was the assistant of Bertolette, and in his absence was clothed with all his powers. For the purposes of this case Sellers was Bertolette and Bertolette was the company.

The distinction between a general dispatcher — one who has the absolute control of all the trains upon the road — and the conductor or engineer of a train is manifest. The latter have the duty of obedience. Their business is to run their trains under orders from the dispatcher, and if an employee is injured as the result -of their negligence, the company is not liable. They are in the same common employment, and are laboring together to the same end, under orders from superior authority. The argument for the plaintiff in error, if carried to its logical conclusion, would wholly obliterate all distinction between railroad employees from the president down, as they may all be said to be in one sense in the same common employment and paid by the same corporation.

While the cases are not uniform upon this subject the weight of authority is with the foregoing views. In addition to the authorities cited, we may refer to Hike v. Railroad Co., 53 N.Y. 549" court="NY" date_filed="1873-11-11" href="https://app.midpage.ai/document/flike-v--boston-and-albany-rr-co-3601544?utm_source=webapp" opinion_id="3601544">53 N. Y. 549 ; Pittsburgh, Cin. & St. L. R. Co. v. Henderson, 5 Amer. & Eng. R. R. C. 529; McKinne v. C. S. R. Co., 21 Idem 539; McKune v. Railroad Co., 17 Idem 389; Phillips v. C. M. & St. Paul R. Co., 23 Idem 453; Phillips v. Railroad Co., 64 Wis. 475" court="Wis." date_filed="1885-12-01" href="https://app.midpage.ai/document/phillips-v-chicago-milwaukee--st-paul-railway-co-6604920?utm_source=webapp" opinion_id="6604920">64 Wis. 475, and Washburn v. Railroad Co., 3 Head (Tenn.) 638. Against these authorities we have only Robertson v. T. H. & L. R. Co., 8 Amer. & E. R. R. C. 175, and Blessing v. St. Louis, Kansas City & Northern R. Co. 77 Mo. 410" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/blessing-v-st-louis-kansas-city--northern-railway-co-8007326?utm_source=webapp" opinion_id="8007326">77 Mo. 410 and 15 Amer. & E. R. R. C. 298. These cases, however, do not sustain the broad principle contended for here, and if they did, we would riot be disposed to adopt them in the face of so much respectable authority the other way. Aside from authority I am of opinion that the doctrine we have announced is founded upon the better reason, and is a rule both valuable and necessary for the preservation of the lives, not only of railroad employees but of the traveling public as well.

This disposes of all that is important in the case.

The sixth, seventh and eighth assignments refer to the questions asked of the expert witnesses. We think they were competent under Laros v. Com., 84 Penn. St. 200, and Yardley v. Cuthbertson, 108 Penn. St. 461.

Judgment affirmed.