108 P. 1062 | Mont. | 1910
delivered the opinion of the court.
Action by plaintiff for damages for personal injuries. On August 17, 1906, the plaintiff was in the employ of the defendant company as a conductor. The defendant Doyle was the yard foreman of the company, in charge of other employees in the actual discharge of his duties in directing the movement and disposition of ears in the yards of the company at Butte. Defendant Whalen was also in the employ of the company as foreman having general charge of the yards. At the time of the accident plaintiff was in a caboose of the company which stood on a sidetrack in the yards. The main and sidetracks extend east and west. To the west from the point where the caboose was standing, there was -an excavation, about twenty-two feet in depth and forty feet in width. The grade of the tracks inclined sharply to the west, so that a car left standing on any of them without having the brakes properly set would of its own weight move toward the excavation. The main line and one of the other tracks crossed the excavation upon a trestle, but the track upon which the caboose was standing ended at its brink. There was at this point no block or other device to prevent a car standing thereon, if it happened to escape, from being precipitated into the excavation. In addition to the foregoing facts it is alleged that the plaintiff was in the caboose in the discharge of his duties; that the defendant company and its foreman Whalen, in the exercise of reasonable care, could have known, and in fact did know, of the existence of the excavation and the facts stated above, but nevertheless failed to obstruct the said track, or to exercise reasonable or any care to prevent a car proceeding along it from falling into the excavation; that while the caboose was standing on the track the defendant company, through its employees Whalen and Doyle, being then engaged in the discharge of their duties, moved a train of cars upon and along the track toward the caboose and toward the excavation; that they negligently permitted these ears to be upon the track without setting the brakes
The answer of the company admits that plaintiff sustained ■certain injuries while in the caboose, but denies that he was at the time in the discharge of his duties as employee of the company. It alleges affirmatively that he was guilty of contributory negligence and that he assumed the risk. The separate answer of defendants Whalen and Doyle interposes the same ■defenses. As to the affirmative defenses there is issue by reply.
The evidence discloses the following: Plaintiff was at the time of his injury forty-one years of age; he was in good health, and had been in. railway service for seventeen years, during the last four of which he had been a conductor on the Montana ■division of the defendant company’s railroad. He resided with his family at Livingston. He ran freight trains from Livingston to Helena, Butte, and Billings. On August 16 he brought train No. 56 from Livingston, arriving at Butte at 11:45 P. M. ■On reaching the yards he “registered in,” that is, he delivered his waybills at the telegraph office of the company, and signed the register after noting the time of his arrival, etc. Upon registering in, his pay ceased until he was “called” to make his return trip. It began again thirty minutes before the hour stated for departure in the call. The brakemen were also off ■active duty as soon as they had set the hand-brakes on the cars .and had disconnected the engine. From that time the train, including the caboose, was in charge of the yard crew. By “yard ■crew” is meant the foreman in charge and his assistants. The term “called” means that, when the train is ready to leave, the ■call boy tells the crew to get ready to take charge of the train, and informs them of the time of starting. It is customary for .a train crew, when away from home terminals, to sleep in their vcaboose. It is provided with a “bunk” under the cupola, which
“Eule 13. Employees of the company must devote themselves to its service, attending during the prescribed hours of the day or night, and residing wherever required.
“Eule 14. No employee will be allowed to absent himself from duty without permission from the head of the department in which employed.”
“Eule 16. Yardmasters report to the trainmaster, assistant superintendent, or superintendent; perform work ordered by agents; and are in charge of yard work, yard engines and crews, and train and engines while in yards.”
Unless a member of a train crew was laid off, or was absent by permission, he was, under rules 13 and 14, required to be within call at all times and ready for duty. So the plaintiff interpreted these rules, and it is not questioned that his view of their meaning was correct. The plaintiff had verdict and judgment. The defendants have appealed from the judgment and an order denying their motion for a new "trial.
The complaint is framed upon the theory that the defendant company is liable to the plaintiff, as one of its employees, for injuries received while engaged in the discharge of his duties, through the negligence of other employees, and that the other defendants are liable because they were personally guilty of the acts of negligence which caused the injury. It declares, upon the statute which abolishes the fellow-servant rule. (Eevised Codes, sec. 5251.) The acts charged as negligence are the handling of the cars by the yard crew in making up the train in such manner as to permit them to escape and collide with the caboose, driving it into the excavation, and the omission by defendants to provide some device, at the brink of the excavation, to prevent the caboose from being precipitated therein, if from any cause it escaped.
The first contention made by counsel is that the evidence is insufficient to justify the verdict, for that it appears that at
While the statute has to do exclusively with those persons who sustain toward each other the relation of master and servant, it does not undertake to define who those persons are, but merely imposes certain rights and liabilities upon them, leaving it to the courts to determine when persons have assumed the relation. (Dresser’s Employer’s Liability, see. 8.) It is not always easy to determine exactly when the relationship, once established, ceases, and the servant may be said for the time being to be his own master. In Packet Co. v. McCue, 17 Wall. 508, 21 L. Ed. 705, the question arose upon the evidence as to whether the employment of the deceased had ended at the time he received the injury. The court said: “It was for the jury to say from the nature of the employment, the manner of engaging the hands, the usual mode of transacting such a business, and the other circumstances of the case, whether the service had or had not ended at the time of the accident.” On this subject Mr. Dresser says: “If a general rule were to be laid down, it might perhaps be that the employment begins when
The facts and circumstances which appear from the statement of the evidence before us furnish support for the inference that, during the entire time when the plaintiff was away from his home terminal, he was, except when notified that his services were not wanted, subject to be called on duty. ITe was required to be within call, and, as he understood the rules, was subject to discipline if he was not. It is also a fair inference that though he was not under his contract required to occupy the caboose at night, he was nevertheless expected to do so, and not only this, but that he had a right to do so, because it was under all the circumstances a substantial privilege accorded to him under the contract, which the company was not at liberty to withdraw at will. If these inferences are permissible, and we think they are, then the conclusion seems inevitable that he was in the caboose in the course of his employment, and that the members of the yard crew were his fellow-servants, for whose negligence the company is liable under the statute. The cases differ greatly as to whether, under such circumstances as are presented in this case, the relationship of master and servant subsists, and whether or not the servant is entitled to all the benefits of such relationship. As is said in the note to Taylor v. Bush & Sons Co., 12 L. R. A., n. s., 853, they arise in a variety of circumstances. Some of them involve the fellow-servant doctrine, others the assumption of risks, and still others involve consideration - of the question whether the master has used ordinary care to furnish a reasonably safe place for the servant to be while at work. In all the eases, however, the essential question to be determined is: Did the relationship of master and servant actually exist at the time of the injury ?
In St. Louis, A. & T. Ry. Co. v. Welch, 72 Tex. 298. 10 S. W. 529, 2 L. R. A. 839, the plaintiff was the foreman of a bridge
In International & G. N. R. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219, the plaintiff was employed by the railway company by the day as a carpenter. He was on a car of the defendant ■on his way, with other members of the working crew to which he belonged, from the station where the crew had been at work, to another where similar work was to be done. They had orders to stop in the yards at San Antonio, an intermediate station, to do some repair work. The car was standing on a sidetrack in the yards. The plaintiff, having spent a portion of the evening in the city, had returned to the ear, and was engaged in writing a letter. Another employee, in charge of a switch ■engine, negligently ran it into the car and seriously injured him. The.court held that the plaintiff and the employees in charge ■of the switch engine were fellow-servants. It disposed of the ■contention that he was not in the employ of the defendant, by saying: “In this case we think it is evident, from the facts testified to by the appellee, that he was, in contemplation of law,
In Dishon v. Cincinnati, N. O. & T. Ry. Co. (C. C.), 126 Fed. 194, the court discussed somewhat at length the reason which furnishes the basis of the fellow-servant rule, and reviewed exhaustively the cases in which it has been invoked and applied in order to relieve the master from liability. The facts in the case show that deceased was in the employ of the defendant as a section-hand. He boarded with the section boss at the company’s section-house. On the evening of the accident, after he had finished his work and eaten his supper, he started with two others to go to the railway station on the opposite side of the track. There was an opening between ears standing on a sidetrack which he had to cross. ' He had passed through this on his way from work. He and his companions undertook to pass between the cars. One of them passed through in safety; the deceased then attempted to pass through, but while he was making the attempt, the opening was closed by the cars being shoved back by an engine manipulating the cars on. the track. The result was that he was crushed and killed. The court held that the death of the deceased was caused by the negligence of his fellow-servants, a risk which, he assumed when he entered the employment of the defendant. Touching the question involved here it is said: “There is no good reason for holding that the assumption of risk exists when the servant is doing one thing required of him by the contract, and does not exist when he is doing another thing so required, or that it exists when he is doing a thing required of him by the contract, and does not exist when he is doing a thing which he is simply authorized to do by the contract. Any stopping short, therefore, of making the assumption by the servant of the current risks of his employment as wide-as the action on his part eontem
The conclusion we have reached, that the plaintiff was in the caboose for the purpose of being within call by the defendant company to go on duty, and was therefore in the discharge of his duties, involves the conclusion, also, that he was not there as a mere licensee, and that the rule of liability declared by the statute applies to the case made by the evidence. It is not at all .conclusive that the pay of the plaintiff ceased when he registered in on his arrival at Butte. In the light of the evidence, under the contract of employment it was within the contemplation of both parties that he should hold himself subject to the order of the company after his pay had ceased; and it seems clear that a contract including a stipulation of this kind, express or implied, is not open to any legal objection.
Under the circumstances disclosed, the obligation was upon the company to use ordinary care to provide a reasonably safe place for the use of plaintiff, and to maintain it in that condition. The evidence furnishes ample support for the conclusion that it failed to discharge its obligation in this regard; for, though it may be conceded for present purposes that it was
Contention is made that the charge of the court was erroneous in that, while two acts of negligence are charged conjunctively, in the complaint, to-wit, the omission to guard the excavation and the negligence of the employees in handling the ears, it instructed the jury that plaintiff could recover upon a showing of fault in either respect. This point was not made in the trial court; but, even so, the defendants cannot complain. Let it be conceded that two separate causes of action are stated. The instructions were formulated upon the theory that if the
A similar contention is made with reference to the allegations that the defendants negligently permitted the cars to be-upon the track without setting the brakes, and that they negligently drove the cars toward and against the caboose. The-contention is really based upon a technical objection to the •form of the statement in the complaint. The evidence tends, to show that the cars escaped after they were left standing-on the track. This sustains the allegation from any point of' view. If the defendants left the cars in such an insecure condition that they escaped and collided with the caboose, the result was that they negligently drove them and thus caused the-collision. They put the effective cause of the accident in mo
It is said that the plaintiff knew and understood the danger of the situation, and therefore, by going to sleep in the caboose, he assumed the risk. There is no merit in this contention. That the place was not safe is apparent. He assumed the risk of all dangers ordinarily incident to the handling of cars under the circumstances as he saw them. Among these was a likelihood of injury due to the bumping of cars against the caboose^ during the making up of a train; but he had no cause to think when he went into the caboose that the yard crew would omit to observe ordinary precautions to -secure the cars by means of the brakes, and thus add to the perils which he did assume. He was entitled to assume, looking to all the conditions as they actually were, that the place was reasonably safe. It was not apparent to him, nor was he bound to know, that the yard crew were going to be so negligent in the course of their employment that he would certainly be injured if he remained in the-caboose. The true test to be applied is not whether the injured servant exercised reasonable care to discover the dangers, but whether the danger was known or plainly observable. (Choctaw etc. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701; Anderson v. Northern Pacific Ry. Co., 34 Mont. 181, 85 Pac. 884.) The evidence fairly presented a case for the-jury on this point.
Fault is found with the charge of the court in many particulars. ¥e have given our attention to them, but find m> prejudicial error in any of them. Nor do we find that the court omitted any instruction which it should have given. Most of' counsel’s criticisms are predicated upon the assumption that the theory of the case adopted by the trial court, as to the liability of the defendants upon any aspect of it, was erroneous.. What has been said in the discussion of the principal contention disposes of all of these criticisms.
As to the measure of damages, the court gave, among others,, the following instruction: “If you find for the plaintiff, and
Other alleged errors have been examined, but none of them have been found sufficiently meritorious to require special notice.
The judgment and order are affirmed as to the defendants railway company and Doyle; as to the defendant Whalen they are reversed, and the cause is remanded, with directions to the district court to dismiss the action as to him.