3 Wyo. 247 | Wyo. | 1889
Lead Opinion
Plaintiff in error brought suit against the defendant in error in the district court of the First judicial district, to recover $25,000 damages for personal injuries re-' ceived by reason of the negligence of the defendant, plaintiff being in defendant’s employ at the time the injuries were received. The evidence tends to show that Harry Stubbs, who is described as a “gang boss,” on the day the injuries were received took the plaintiff and found other employés of defendant to lower an engine. The engine, having been run into the shop for repairs, had been hoisted above the track, and was resting up-' on heavy timbers, the timbers resting upon the rails and above a pit dug under the track, two or three feet deep. All the timbers had been taken from under the engine but one, and Stubbs had previously ordered two of the men away. Plaintiff by order of Stubbs was on the right-hand side of the engine, and the
The questions we are called upon to decide are whether the court erred in refusing to grant a new trial upon the motion of plaintiff, and whether the court erred in refusing to render judgment in favor of plaintiff and rendering judgment in favor of defendant upon the special verdict. If the plaintiff is entitled to judgment upon the findings of the jury it is upon the principle that Harry Stubbs was not, in contemplation of law, a fellow-servant of the plaintiff, but was a vice-principal standing in the place of the defendant, by reason of being placed by the defendant in control of a separate matter or department; or that, not being in control of a separate department, he yet was the representative of the common employer, by being placed in charge of the performance of duties upon which depended the safety of the men, and which the employer could not shift by dele
This brings us to a consideration of the facts as found in the special verdict. The eighth finding recites: " That in consequence of an order given by said Harry Stubbs, the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also find Louis Jacobson negligent. ” This is the only finding which imputes negligence to any one connected with the work in hand; and we think it clear, if the plaintiff can recover at all, it must be upon the ground that Stubbs, exercising the duties of the master in this regard, by his order left an insufficient number of men to do the work safely, and thereby the accident occurred. It cannot be maintained that by the order taking Jacobson away from the work some surprise or confusion among the remaining employés was occasioned, and that the accident thereby occurred, although sufficient force remained to do the work if properly applied. If the finding means that, then the plaintiff cannot recover, for in directing and assisting in the work merely Stubbs is a fellow-servant, and not the representative of the master. Moreover, the jury in terms find that in consequence of Jacobson’s failure to assist the accident occurred. But by the sixth clause of the verdict the jury find “that three men were generally employed to remove the timbers referred to, although two men — one of them being in the pit under the engine— could do the work.” The two findings are inconsistent with each other. The jury finds two men sufficient to do the work safely, and it clearly appears from the verdict that two men — the plaintiff and John Estes — were left to do the work, and yet they find that the accident occurred by reason of the failure of a third man to assist. It may be suggested that in order for two men to do the work safely one of them must have been in the pit under the engine. It may be that this is a legitimate inference from the language of the sixth finding. But, upon the other hand, the jury do not find that one of the men was not in the pit, unless it be conjectured from the language used in the seventh finding. And in any event it would only illustrate the negligence or care with which the work was performed; and in this respect Stubbs does not represent the master, but stands in the attitude of a fellow-servant only.
Dissenting Opinion
(dissenting.) At tire last term of this court, and before this cause stood regularly for hearing upon its merits, the defendant in error submitted to the court a motion to dismiss the petition upon the ground that the paper purporting to be a bill of exceptions, and which is attached only to the petition in error, was allowed and signed by the judge of the trial court in vacation, and that the record nowhere outside the alleged bill shows that a bill was allowed. On the hearing of that motion the majority of the court overruled it. 18 Pac. Rep. 635.
Now, the only point intended to be made is that the argument should be carried to its logical sequence. I contend that it is worse than inconsequential to affirm that one statute is the prototype of another in respect of those matters of which the one speaks and the other is silent; but, if so be that despite those differences one must be accepted as the pattern of the other, then the pattern must be made to apply to all points of difference. The Wyoming Code is something more than an adoption of the Ohio Code. Its various provisions, with but few exceptions, are a transcript of the latter. And this fact of itself lends force to the proposition that a judge cannot, out of term, allow and sign a bill of exceptions. By the Ohio Code, and by the identical sections which are cited as the prototype, this power is expressly conferred. In the Wyoming Code there is nc such express delegation of authority. It can be maintained only by an interpretation, which I must conclude is not in harmony with the context. While the rule that statutes in derogation of the common law shall be strictly construed has been abolished in this territory, it is nevertheless a conservative proposition that when a common-law
By further examinations of the statutes it will be ascertained that when the legislature Intended that a power or duty should be devolved upon the judge as distinguished from the court, apt words are used to express that legislative intent. Thus, in section 2573, “all issues, by consent of parties, may be refused by the court, or by a judge thereof in vacation.” “Sec. 2574. When the parties do not consent, the court, or the judge thereof in vacation, may refer the issues when the parties are not entitled to trial by jury.” “See. 2887. The court, or the judge thereof in vacation, may appoint a receiver.” “Sec. 2892. The court, or a judge thereof in vacation, may make proper orders for the preservation of property.” “Sec. 2913. The attachment may be granted by the court in which the action is brought, or by the judge thereof.” “Sec. 2921. The injunction may be granted at the time of commencing the action, by the district court, or by a judge thereof.” “Sec. 2932. A party may apply to the court in which an action is pending, or to a judge thereof, or to the supreme court, or to a judge thereof, to vacate or modify an injunction.” “Sec. 3136, subsec. 2. The undertaking shall be in such sum as may be prescribed by a court of record, or by a judge thereof.” “Sec. 3068. The court, or a judge thereof, may make an order for the examina
Entertaining these views, the only proper judgment which I conceive the court can render is to dismiss the petition in error; but since it is held that the record is properly here, I deem it at least not foreign to my duty to express an opinion upon the merits of the cause. Here, again, I am reluctantly enough compelled to differ from my associates. It may be accepted as a correct principle that, when the special findings of a jury are inconsistent with each other the court should award a new trial. The philosophy of this is easily discernible. Inconsistent findings neutralize each other, and therefore leave nothing on which-the court can render judgment. But this rule cannot, as I think, either on principle or authority, be said to have universal application. If
Ante, 183.