81 P. 85 | Utah | 1905
1. Respondents had judgment against appellants for negligently causing the death of William A. Merrill, the husband and father of respondents. Among other things, it was alleged in-the complaint that the deceased was in the employ of the appellant as a car repairer at its yard in Pocatello, Idaho, and was directed to make repairs on one of its cars in a string or train of cars standing upon one of its tracks in said yard; that the appellant had negligently failed to promulgate and enforce rules and regulations concerning the displaying of flags when car repairers were between or under cars making repairs, and at such time forbidding coupling onto or moving the said cars; that whilst the deceased was between two of said cars the appellant, without notice or warning to the deceased, .negligently backed and kicked a string of cars against the cars on which the deceased was making repairs, thereby moving them and so injuring him that he died. The answer contained a general denial as to all of the alleged acts of negligence, and alleged negligence of a fellow servant, contributory negligence of the deceased, and that his death was caused from a usual and ordinary risk of his employment.
2. ■ The evidence on behalf of respondents, so far as material to the assigned errors, tends to show: That there were ten tracks running parallel with each other in the yard, which was about three-quarters of a mile long. The yard was used for holding, breaking, and the making up of -trains, and a great deal of switching was done there. All trains, both passenger and freight, were stopped and looked over, and, if any light repairs were necessary, they were made there. The deceased was a member of a crew of car repairers, over which there was a foreman. There was a switch crew switching in
“A blue flag by day and a blue light by night displayed at one or both ends of an engine, car or train indicates that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals without first notifying the workmen.”
Another rule:
“When inspecting and repairing cars which they do hot wish moved, they must protect themselves by placing conspicuously a blue signal on both ends of the car, as provided in rule 26, and when necessary to make repairs on a car in a train, they must place blue signals, on both ends of the train before commencing work. If an engine is attached to it, they will place a blue signal upon the engine where it can be plainly seen by the engineman and fireman.”
It introduced evidence showing it had furnished and had on hand an ample supply of flags for such purpose, and that there was no disregard of the use of them, but that they were generally used and displayed by the repair men when inspecting and making repairs, in accordance with, and as it was their duty to do under the said rules.
3. The court charged the jury that respondent’s rights to recover in the action were to be determined by the law of the state of Idaho, and charged, under such law, that the foreman of the repair or inspecting crew, the foreman of the switch
■ 4. The principal assigned error, and the only one discussed in the brief, relates to the refusal of the court to give appellant’s request to direct a verdict for it. This is claimed upon the grounds that there was no negligence shown upon the part of appellant, for that it had promulgated rules and regulations calculated to secure the safety of its employees, had flags on hand, and, if the rules and regulations were not carried out, such failure, if it amounted to negligence, was that of a fellow servant. That is to say, the master has performed his full duty, by framing and promulgating rules, and “exercising care to enforce the rules by the selection of reasonably competent persons to perform the work,” and that appellant is not liable for a failure to carry out the methods as prescribed. It is also claimed that the deceased was guilty of negligence in not displaying a flag, and that the danger was a usual and ordinary risk incident to the employment, and-was therefore assumed by him. Appellant, with great care and at some length, discussed the question, and cited numerous authorities to the effect that under the law and the decisions of the State of Idaho the foreman of the car repairers, and switch crew, and all persons in the yard, regardless as to whether they were foreman or yard master, were fellow servants with the deceased. To this contention it is quite sufficient to say that the trial court so held with appellant, and so charged the jury. The important question, therefore, is whether the negligence, if any there was, causing the injury and death of the deceased, arose and grew out of a failure to perform some primary or positive duty which appellant, as master, owed the deceased, or whether it arose out of some mere negligent act of a person or persons about the yard, held to be fellow servants, including the said foremen and yard master, or whether there was any negligence upon the part of the appellant with respect to its primary or positive duties, combining and concurring with the negligence of a fellow servant as a proximate cause of the injury and death.
It must be conceded it is settled law that among the primary
“An employer does not discharge bis whole duty by merely framing and promulgating proper rules for tbe conduct of his business and tbe guidance and control of bis servants. He is also under tbe obligation of enforcing tbe rules in so far as that result can be attained by exercising a reasonably careful supervision over bis business and bis servants. In other words, a master’s duty does not end with prescribing rules calculated to secure tbe safety of bis employees. It is equally binding on him honestly and faithfully to require their observance.” (La-batt, Mast. & Serv., sec. 214.)
Independent of some statute defining “fellow servant” (there is none in Idaho), tbe test established by tbe Supreme Court of tbe United States and those courts not following tbe superior servant doctrine, of which Idaho is one, as to when negligence is that of the master or of a fellow servant, is
It is quite true, when the evidence of appellant is considered, it shows that appellant established and promulgated sufficient and proper rules and regulations, used ordinary care to, 'and did, enforce them, furnished and kept on hand sufficient and necessary flags for such purpose, and that by yielding obedience to such rules the safety of the deceased was reasonably and properly protected and guarded, and that his injury and death were the result either from his failure and neglect to display flags whilst between the cars, or from some omission or commission of the men about the yard in not properly obeying or observing the rules. But in considering whether the court should have directed a verdict for appellant, we must look to that evidence in the record which is most favorable to the respondents; and, when the truth of such testimony is assumed, quite a different state of facts is
The contention made that it was not shown appellant, through any officer or agent standing in the place of the master, had notice or knowledge that the rule was disregarded, and that notice to or knowledge of the foreman or- yard master was not its knowledge, cannot prevail, and is fully answered by the following cases and those already cited: North P. R. Co. v. Babcock, 154 U. S. 200, 14 Sup. Ct. 978, 38 L. Ed. 958; Hough v. Ry. Co., 100 U. S. 213, 23 L. Ed. 612.
The knowledge of appellant is not charged by virtue of these men being foremen, but from the fact, as shown by the evidence, to them or some of them was delegated the duty to discharge a primary duty of appellant — ^of enforcing the
It is further urged that the deceased was guilty of negligence, because of his failure to display a flag before going between the cars to malee the repairs. It is true, if appellant had established the said rule with respect to displaying a flag, and that the deceased knew there was such a rule, and that such rule was not generally or habitually disregarded, and not abandoned, but reasonably enforced, and that appellant furnished flags for such purpose, and that the deceased failed to display the flag as required by the rule, and that such failure contributed to his injury, clearly respondents were not entitled to recover. But there is evidence in the record to show that appellant had not furnished or provided flags for such purpose during the time that deceased was employed at and about the yard, and for a year prior thereto, and that car repairers during said time were not in the habit of using flags when making repairs in the yard.' And appellant cannot well say — much less can we, as matter of law, say — the deceased was guilty of negligence in not using and displaying a flag, when it was not provided or furnished him. And because there was evidence in the record showing though rules and regulations had been established and promulgated, yet for a year prior to the accident they were generally disregarded, under circumstances from which it could be presumed appellant knowingly permitted such disregard, or approved it, without attempting to enforce the rules, we think it was a question for the jury to determine whether the deceased was or was not guilty of negligence in not displaying a flag or not observing the rules. (Pool v. R. Co., 20 Utah 210, 58 Pac. 326; Boyle v. R. R., 25 Utah 420, 71 Pac. 988; Wright v. R. R., 14 Utah 383, 46 Pac. 374.
“It is true that, when the plaintiff entered the employment of the defendant as switchman in the yards at Carlin, he assumed the perils and risks ordinarily incident to such employment, including the hazards which observation would bring to his knowledge; but he did not assume the perils occasioned through the negligence of his employer.” (Wright v. R. R., 14 Utah 392, 46 Pac. 374; Pool v. R. R., 20 Utah 216, 58 Pac. 326.)
In entering his employment the servant has the right to assume that the master has used ordinary care with respect to the performance of his primary and positive duties, and the servant does not assume the perils and risks occasioned by the negligence of the master in his failure to perform these duties, unless the servant has actual or presumptive knowledge that these duties have not been performed, and the perils and risks arising therefrom, and to which he is exposed, are known to him, or are so obvious that knowledge may be presumed, and, with such knowledge, he accepted or continued in his employment without complaint or protest.
“The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer’s negligence in performing such duties. The employee is not obliged to pass judgment upon the employer’s methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. This rule is. subject to the exception that where a defect is known to the employee, or is so patent as to be readily observed by him, he cannot continue to use*282 tbe defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation. In other words, if he knows of a defect, or it is so plainly observable that he may be presumed to know of it, and continues in the master’s employ without objection, he is taken to have made his election to continue in the employ of the master, notwithstanding the defect, and in such case cannot recover.” (R. Co. v. McDade, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 96.)
After stating the general rule again, it was said:
“But no reason can be found for, and no authority exists supporting, the contention that an employee, either from his knowledge of the employer’s methods of business, or from a failure to use ordinary care to ascertain such methods, subjects himself ,to the risks of appliances being furnished which contain defects that might have been discovered by reasonable inspection. The employer, op. the one hand, may rely on the fact that his employee assumes the risks usually incident to the employment. The employee, on the other hand, has the right to rest on the assumption that appliances furnished are free from defects discoverable by proper inspection, and is not submitted to the danger of using appliances containing such defects because of his knowledge of the general methods adopted by the employer in' carrying on his business, or because by ordinary care he might have known of the methods, and inferred therefrom that danger of unsafe appliances might arise. The employee is not compelled to pass judgment on the employer’s methods of business, or to conclude as to their adequacy. . . . In assuming the risks of the particular service in which he engages, the employee may legally assume that the employer, by whatever rule he elects to conduct his business, will*283 fulfill bis legal duty by making reasonable efforts to furnish appliances reasonably safe for the purposes for wbicb they are intended; and, whilst this does not justify an employee in using an appliance which he knows to be defective, or relieve him from observing patent defects therein, it obviously does not compel him to know or investigate the employer’s modes of business, under the penalty, if he does not do so, of taking the risk of the employer’s fault in furnishing him unsafe appliances.” (Ry. v. Archibald, 170 U. S. 671, 18 Sup. Ct. 777, 42 L. Ed. 1188.)
Tested by these principles, we cannot say, as matter of law, that the deceased assumed the risk of the peril and danger to which he was exposed and which caused his injury, but we think it was a question of fact to be submitted to the jury; and the law with respect thereto, we think, was stated more favorably to the appellant than it had a right to ask. Here was evidence to show that the peril to which the deceased was exposed was occasioned through the want of ordinary care by appellant, either in not promulgating a proper rule, or by not using ordinary care in enforcing it, which, of course, was its negligence.
The point now is, did the deceased have knowledge, either actual or presumptive, that the nature of the business was such as to require rules and regulations; whether rules had been promulgated; if promulgated, what was his knowledge with respect to the disregard or waiver or abandonment of the rules; what was his knowledge with respect to the perils occasioned thereby; his knowledge as to the condition of the premises, the things then being done or about to be done, the nature and character of the work then being performed about the yard, all to be considered in connection with what he was doing himself, and from all of which his peril arose; and how manifest and obvious this peril was made to appear or his perilous situation disclosed. Has knowledge of these matters does not rest upon any direct evidence in the case, but it is to be gathered and deduced from the length of time he was
The judgment of tbe court below is therefore affirmed, with costs.