93 Kan. 681 | Kan. | 1915
The opinion of the court was delivered by
In this action the plaintiff recovered damages for personal injuries, and the defendant appeals from the judgment.
The plaintiff was the rear brakeman of a freight train, running from Dodge City to Newton, and at the time he was injured the train upon which he was at work was engaged in hauling interstate shipments. The crew consisted of the conductor, engineer, fireman, and a head and rear brakeman. The train was made up of sixty-two freight cars. Just'before the train left Larned, which is twenty-two miles west of Great Bend, the conductor directed the plaintiff to go forward and act as fireman of the engine, while he himself took charge of the engine and acted as engineer from that point to Great Bend, for the purpose of allowing the regular engineer and fireman and the head brakeman to go to the caboose and eat their dinner. It required forty-five minutes to run from Lamed to Great Bend. The plaintiff testified that when he and the conductor finished eating their dinner the conductor said, “You can go to the head end; you and I will take charge of the engine and let the engine crew come back and eat.”
“I obeyed instructions. . . . When we got to the head end he told me to get up and finish taking water*683 for the fireman; then he told me to fire the engine from there to Great Bend. ... It must have been about 2:30 when I got on the engine at Lamed. . . . As we turned the curve going into Great Bend the conductor said he heard a noise and asked me to look and see if I could see anything dragging. I looked and told him I could n’t see anything. He says, ‘Get down on the step and look.’ I told him as soon as he shut off for town I would. As he shut off for town I turned on the blower and got down on the step and I was looking. As we hit the passing track the tire came off and hit the blow-off cock and the blow-off cock hit my leg and knocked me off the step.”
He also testified:
“Neither the engineer nor the fireman nor the head brakeman objected to the conductor and me relieving the engineer and fireman and letting them go back and eat. I didn’t object, I didn’t dare to. We had done that frequently before.”
With reference to the brakes, the plaintiff testified that the conductor looked at them just before going .into Pawnee Rock and it showed that the brake was set a little, about four or five pounds, and he released it, and said, “Look how much faster it is picking up the train — how mu disaster it is going.” The other brakeman testified that the exchange of positions on the train was made in order that the rest of the crew might eat their dinners, and that it was done for the interest of the company in order to get ovér the road; that they had been accustomed to do this under the same conductor; that they had been doing it most of the time that he was on that run, for about a year.
The jury found for the plaintiff in the sum of $6000, and returned special findings of fact, including the following, which defendant claims are inconsistent:
“Q. 6. If you find for plaintiff, state the exact negligence of which defendant was guilty upon which you basé your verdict. A. 6. Defective tire on right rear driver.
“Q. 7. State the exact defect (if any) in the engine tire and wheel which caused the tire in question to*684 come off. A. 7. Improper use of brakes, causing expansion of tire.
“Q. 8. How long had the defect in the engine tire or wheel in question existed (if at all) prior to the time of the accident? A. 8. Between Pawnee Rock and Great Bend.”
Manifestly, the sixth and seventh findings can not, technically speaking, be correct. The improper use of the brake did not constitute a defect in the tire, though there was evidence to sustain a finding that the tire became defective by reason of such improper use. Nor was the defective condition of the tire an act of negligence, but it may have been and the evidence seems to indicate that it was caused by a negligent act in improperly using the brakes. It seems more than probable that the answers to questions 6 and 7 became in some manner transposed. We think the three findings considered together in the light of the evidence, the contentions of the parties, the general verdict, and all the circumstances of the case, should be construed to mean that the improper use of the brakes, causing an expansion of the tire, is the negligence of which the jury intended to find the defendant guilty; that the defect in the tire consisted of an undue expansion caused by such negligent use of the brake; that this defective condition of the tire arose between Pawnee Rock and Great Bend, and that there was nothing wrong with the tire previous to that time. The findings were not attacked by a motion on the part of the defendant, nor a request to have the answers made more specific or definite, nor was judgment asked upon the findings. It does not seem possible that the defendant was prej u-diced by the manner in which these answers were returned, nor do we find anything to indicate that the jury were attempting to evade the questions. In view of what we have said, we can not regard the findings as so inconsistent with each other or with the general verdict as to justify the granting of a new trial.
We discover no fatal variance between the statements of plaintiff’s petition and the proof. The allegation that plaintiff was acting in the line of his duty as a brakeman when he stood on the step of the engine is in accordance with the theory upon which the petition was obviously drawn, which is that it was his duty as a brakeman, acting under the control of the conductor, to obey orders, even if that required him to perform temporarily the duties of a fireman. The jury find that the tire became loose between Pawnee Rock and Great Bend. The petition alleged that the tire had been loose two days prior to the accident, and that defendant knew or had opportunity to know of such defect. Conceding a variance here between the allegations and the proof with respect to notice, it can not be regarded as prejudicial, if, as we shall attempt further on to show, the plaintiff’s right to recover in no manner depends upon whether or not the defendant knew or had opportunity to know of any defect in the tire. There is a variance in the averments of the peti
The defendant insists that plaintiff was performing work outside the regular scope of his employment, without direct authority from the company. It is, of course, true that at the time of his injuries he was not performing the usual duties of a brakeman; he was acting, for the time being, as a fireman, but it by no means necessarily follows that in so doing he was acting outside the scope of his employment.
Did the conductor have authority to order the plaintiff to perform temporarily the duties of a fireman? The plaintiff offered in evidence certain rules of the company, and others were offered by the defendant. One rule requires that freight brakemen must be on top of their trains when approaching and passing stations. Another declares that the post of the rear brakeman is on the last car in the train, which he must not leave while the train is in motion, except to apply the brakes, without instructions from the conductor. Rule 452 provides that engineers will not permit persons to ride on engines, other than designated employees in the discharge of their duties, without a written order from the proper authority. Another rule places the engineer under the direction of the conductor in the management of trains, but provides that engineers will not obey instructions that will endanger the safety of the train or require a violation of rules. One rule holds the enginemen responsible with the conductor for the
From an examination of these rules we fail to find any express provision prohibiting a brakeman from performing the duties of a fireman upon the orders of the conductor, nor do we find any rule which seems to limit the control of the conductor over the acts and conduct of the brakeman within the scope of the latter’s employment while the train is in the conductor’s charge. If the railway company desired to make a rule that under no circumstances should a brakeman act as fireman without orders from some officer superior to the conductor, it would seem a very easy matter to have so provided.
The conductor is given control of the train and of the train crew, and must instruct the brakemen in all their duties; he is given authority to order the rear brakeman to leave his post on the last car in the train. In view of the absence of any specific rule on the subject, we do not think it can be said that there is anything in the nature of the business or the manner in which it is usually carried on that would make 'it seem unreasonable that a brakeman might on occasion be called upon by a necessity or emergency to perform the duties.of a fireman; and certainly it would not seem unreasonable in this instance. According to the plaintiff’s testimony he had been a fireman on engines for five years on other railroads. So far as appears from the evidence, he may have been as well qualified to perform the duties as the regular fireman. In our opinion, therefore, the conductor must be held to have had authority to order the plaintiff to act as fireman. His act in this respect, as well as that of the brakeman in obeying the order, seems to us as the necessary, natural and proper result of the thing they were employed to
The case of Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205, is in point. There the railway company was held liable for the negligence of the conductor of a work train in ordering a laborer to do work outside the scope of his contract. In the opinion in that case it was said:
“It will be conceded that for a positive wrong beyond the scope of the master’s business; intentionally or recklessly done, the master can not be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an excess of authority, committed in furthering the master’s interests, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant’s authority. The master fixes these, and it is his duty to keep his servant, in what is done by him, within the limits fixed. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not always be expected to know or to be able to discover whether it was or was not without express sanction.
“In this case Smith had charge of the train and of the men employed with it. In what he did, he was not purposely committing any wrong outside the employment, but his wrong was committed while acting in the very capacity in which he was employed, and had for its manifest purpose not to injure Williams but to advance the interests of the railway company.” (p. 213.) (Italics ours.)
Was the plaintiff acting within the scope of his employment at the time he was injured? As we have said, the mere fact that he was employed as a brakeman and was injured while temporarily performing the duties of a fireman does not settle that question. He was employed as a brakeman, but if the duties of a
“And the only question there can be in this case is whether the plaintiff was ordered to do something which under the circumstances was outside of his employment, so that, had he been inclined to do so, he might rightfully have refused obedience to the order. And this, as it seems to us, must depend upon whether, when the contingency appears to the conductor to render it necessary, that official may for the occasion take charge of the engine, and at the same time require the brakeman to continue to perform his service.
“That contingencies may and do arise in which the conductor should take charge of the engine for the time, is undoubted. The necessity may sometimes be as urgent as it is plain; and lives may depend upon it. This might happen from injury to the engineer, or sudden illness; and when to leave the train where the disability of the engineer occurs would endanger some other train. But there might be other reasons for the engineer leaving his post, for which the company would not be in fault, and the conductor, with the train*690 in his charge and under obligation to avoid other trains, must act in the emergency as the necessities of the case shall require. His highest and plainest duty in some circumstances will be to take possession of the engine and operate it.” (p. 58.) (Italics ours.)
It was held that the conductor was acting rightfully in taking charge of the engine, but that the plaintiff’s suit failed because he had assumed the risk of the injury. The other members of the court held that the services were not contemplated by the plaintiff’s contract, but the conductor, in the exercise of his authority, having-ordered him to perform services of increased peril, the case was “no different from what it would have been had the defendant been a natural person, and without possessing the requisite skill and experience and being wholly unfit and incompetent, had himself undertaken to run and manage the engine, and had at the same time ordered the plaintiff to couple-the cars, and the injury had resulted in consequence of the want of fitness, competency, skill and experience of defendant.” (p. 63.) This division of the court held that the case was ruled -by the decision in Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205.
In Barry v. Hannibal & St. J. Ry. Co., 98 Mo. 62, 11 S. W. 308, 14 Am. St. Rep. 610, it was held that where a servant steps outside his usual duty, and the departure is such as the necessity of the case fairly and reasonably calls for, keeping in view the character of the work the servant is contracting to perform, then such departure will not of itself defeat a recovery of damages in case he is injured. In that case an engineer was killed by being run over by a hand car. He had left his engine, although the rules required him to remain there.
The following Kansas cases cited by defendant, Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, were all cases
“It is difficult to state with precision the exact meaning of the phrase 'scope of the employment,’ but from the foregoing expressions in decisions and textbooks it may be said generally that to fix liability upon the master or employer the act must not only be done in the'time, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee’s own purpose or devise, although in an interval of his regular service, the employer is not liable,” (p 481.)
In the Crelly case, supra, the duty of the servant was to have the plaintiff sign a voucher for compensation due her at the time she was quitting the service. Because she refused to sign the voucher he violently assaulted and beat her. ' It was held that the use of force for such a purpose was not within the scope of his employment. In the opinion it was said that “to assault or -beat a telephone operator is not a recognized or usual way of procuring her signature to a voucher on which to draw the wages due to her.” (p. 24.)
While we do not wish to be understood as intimating that it would have made any difference if there had been proof in that case showing that for some time that had been the usual and customary way for the telephone company to procure signatures to vouchers, nevertheless, in determining the scope of plaintiff’s employment in the present case some consideration must be given to the fact that it appears from the testimony that it had been the usual custom for more
It is manifest that little aid can be had from a consideration of those cases where a corporation is sought to be held liable for the wrongful or malicious act of an agent or servant where the doing of the act could not in the nature of things be in the exercise of the ordinary duties of the agent or servant. As a general rule it is true that if the servant, instead of doing that which he is employed to do, does something else which he is not employed to do at all, the master can not be held responsible for what he does, nor is it sufficient that the servant did the act with the intent to benefit or serve the master. The act must be done in attempting to do what the servant has been employed to do.
In the case of Gavigan v. Lake Shore, etc., R. Co., 110 Mich. 71, 67 N. W. 1097, cited by defendant, a section hand was a member of a gang engaged in relaying a track, and it became necessary, in order to distribute the rails, to move two freight cars. The plaintiff was injured in' obeying the order of the section boss to climb upon one of the cars for the purpose of moving it so that the rails might be distributed, and it was held that he was acting outside the scope of his employment.' It was, therefore, held that he had assumed the risk, and further, that the negligence of the section boss was that of a fellow servant. We decline to follow that case as an authority on the question of the scope of the servant’s employment. It seems to us that it would be far more reasonable to hold that the act of the plaintiff in that case was a necessary, natural and proper result of what he was employed to do, rather than to hold that in such a situation the work of laying the rails must stop while a train crew was sent for to' move the freight cars.
Another case cited by defendant is Richmond & D.
In Brown v. Jarvis Engineering Co., 166 Mass. 75, 43 N. E. 1118, 55 Am. St. Rep. 382, it was held that the foreman of a gang of men employed in constructing a foundation for a printing press has no authority, while such work is suspended, because of the presence of a van containing rolls of paper, which must be unloaded and rolled into the basement of the building, to direct the men constituting a part of “his gang to assist with such unloading, though their so doing may expedite the work for which they were employed. It was said in the opinion:
“In the construction of a building it frequently happens that one set of workmen has to wait until another set of workmen gets through, but it never has been supposed that this would authorize a foreman of a gang of painters to direct his men to assist carpenters*694 or plasterers, or to attempt to do their work, although the doing of it might in a sense be said to facilitate the carrying forward of the work of painting. Men are employed because they are supposed to be skillful in •their particular trades, and, when they are set to do a work within their trade they carry no implied authority from their master to engage in any other trade.” (p. 77.)
It was further said in the opinion:
“The act of the defendant’s servants was not a necessary, or natural, or proper result of anything that the servants were employed to do.” (p. 77.)
In the present case everything that was done by the conductor and the plaintiff in operating the engine was done in furtherance of the defendant’s business, undoubtedly for the purpose of avoiding delay in the operation of the train while the engineer and fireman were taking their dinner. How can it be said that the conductor and fireman had temporarily laid aside the master’s business while engaged in running the train from Larned to Great Bend?
It is true that according to the statements of the petition the plaintiff knew that the conductor was not an experienced engineer, and knew that it was no part of the conductor’s duty to operate the engine, and that no emergency existed requiring him to do so, and also knew that the conductor was acting in direct violation of the rules of the company. It is self-evident, as the defendant contends, that plaintiff would not have been injured if he had remained at the rear of the train; but if the conductor had authority to require plaintiff to perform duties upon the engine, the plaintiff may recover, notwithstanding his knowledge that the conductor was violating the rules of the company. (A. T. & S. F. Rid. Co. v. Randall, 40 Kan. 421, 19 Pac. 788; Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205.) The jury by their verdict have found that an ordinarily prudent person in his situation would not have refused to obey the orders.
The court also charged, in substance,' that if the conductor carelessly and negligently applied the brakes to the wheel and caused the tire to expand and become loose, and the plaintiff was directly injured by reason thereof, then the defendant was guilty of negligence and would be liable to the plaintiff for injuries sustained, provided the plaintiff did not assume the risk incident to the examination of the tire, as otherwise indicated in the instructions; and further, if they, found he was guilty of contributory negligence, they were directed to apportion the damages as provided in the federal employers’ liability act. We think the instructions correctly stated the law, and that there was evidence to sustain the verdict and findings.
It follows that the judgment must be affirmed.
