33 P. 821 | Ariz. | 1893
This action was brought by plaintiff, who was in the employment of defendant as a section foreman on its railway, for injuries sustained by him in a collision between two railway trains, caused by the alleged negligence of the conductor of the train in which he was at the time of the injury. At the trial below several questions were asked, to the ruling of the court on which the defendant took exceptions and assigned as error, as well as exceptions to the charge of the court to the jury. The part of the charge of the court of which the defendant most particularly complains reads as follows: “The court instructs the jury that a conductor of a railway train, who commands its movements, directs when it shall start, at what station it shall stop, and has the general management of it, and control over the persons employed upon it, represents the railway company, and is not a fellow-servant with a section foreman in the employ of said company; and if the jury believes from the evidence that John Barrett was the conductor of the train upon which plaintiff was, and had the powers just stated. regarding such train, the court instructs the jury that Barrett was not a fellow-servant with the plaintiff.” The disposition of this assignment principally settles the rights of the parties in the case, for if the defendant is liable for the injury sustained by the plaintiff (which the jury has so found), we regard it unnecessary to consider whether many of the other points or rulings of the court were correct or erroneous, for we think the general result would have been unchanged.
Is the defendant liable for the negligence (conceding there was negligence) of John Barrett in causing the injury to plaintiff complained of? From the evidence we gather that plaintiff was in the employment of the defendant, who is a railway corporation, as a section foreman, and whose duty it was to repair all injuries to the road-bed and track of defendant’s railway, and to perform such other work of like character as the defendant should direct him to do. On the twenty-third day of August, 1890, he was ordered by the road-master acting for the defendant to go to a certain point on the line of defendant’s railway in the county of Pima,
The case of Railroad Co. v. Ross, 112 U. S, 377, 5 Sup. Ct. Rep. 184, upon which plaintiff seems chiefly to rely, sustains the above charge of the court. The court there clearly makes a distinction in their relation to their common principal between servants of a corporation exercising no supervision over others engaged with them in the same employment and agents of the corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. “A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porter, and other subordinate employees. He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. ... We know from the manner in which railroads are operated that, subject to the general rules and orders of the directors of the companies, the conductor has the entire control and management of the train to which he is assigned. He directs when it shall start, at «hat speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements. In no
Upon the question of negligence of Conductor Barrett resulting in the injury of plaintiff the testimony is conflicting. The jury found that there was negligence, and, further, that plaintiff was not at fault. We cannot disturb the verdict on that ground.
A further consideration of the other assignments would lengthen the discussion without any beneficial results. We are inclined to the opinion that no error was committed by the lower court which could justify a reversal of the case.
The jury returned a verdict of twenty-five thousand dollars in favor of the plaintiff. We infer that this amount was rendered upon the theory that the plaintiff was permanently injured, so as to incapacitate him from earning a livelihood for himself and family. We do not think the testimony warrants such a conclusion, or that the plaintiff’s injury amounted to that sum, and therefore consider the verdict excessive, and are of the opinion that the judgment should be reduced to the sum of fifteen thousand dollars. The district court is therefore hereby directed to modify its judgment by rendering judgment against the defendant and in favor of the plaintiff for the sum of fifteen thousand dollars, provided the plaintiff shall elect to remit the sum of ten thousand dollars from his former judgment; and in case he does not so elect a new trial of the whole ease is ordered.
Gooding, C. J., and Kibbey, J., concur.