Murphy v. Chicago, M. & P. S. Ry. Co.

141 N.W. 380 | S.D. | 1913

GATE'S, J.

This is an action for personal injuries. The defendant railway company interposed a general demurrer to the complaint. The demurrer was overruled, and the defendant railway company appeals.

The material parts of the complaint to which the argument is directed are as follows:

“IV. That on the 29th day of June, 1912, and for some time prior to said date, plaintiff was employed by defendant Chicago, Milwaukee & Puget Sound Railway Company as a section hand at and near said Moreau Junction. That in the evening of said day plaintiff, in obedience to the orders and directions of defendant Chicago, Milwaukee & Puget Sound Railway Company, accompanied the foreman- of said section -crew, of which plaintiff was a member, to Mobridge on a speeder, which is a small car operated by gasoline power, for the purpose of securing additional laborers for said section crew. That plaintiff -then and there spent some time in the city of Mobridge in assisting said foreman in the hiring of several men, all of which was done at the special instance and request of defendant Chicago, Milwaukee & Puget Sound Railway Company. That about 10:30 o’clock in the evening of said day plaintiff was, by the defendant Chicago, -Milwaukee & Puget Sound Railway Company, carelessly and negligently ordered and directed to hoard said speeder, together with his said foreman and fellow laborers, for the purpose of returning to said Moreau Junction, while an engine of said railway company was then and there carelessly and negligently being; operated over said track, going eastward from said Moreau Junction to said Mobridge. That 'before starting for said Moreau, Junction, as aforesaid, plaintiff and his fellow laborers were by the -defendant Chicago, Milwaukee & Puget Sound Railway Company carelessly and negligently, and without the exercise of due care and caution, informed and assured that they would have a clear track to said Moreau Junction, and relying on said careless and negligent information and assurance, plaintiff and his fellow laborers immediately started westward over said -track bound for their said destination, -as ordered and directed by said Chicago, Milwaukee & Puget Sound Railway Company.

“V. That on the 29th day of June, A. D. 1912, while plaintiff was a passenger on said speeder of defendant Chicago, Milwaukee & Puget Sound Railway Company proceeding westward to said Moreau Junction, as aforesaid, the said defendants, Chicago, Milwaukee & Puget Sound Railway Company and H. C. Worley, an engineer in the employment of said railway company, carelessly and negligently, and without any warning or notice to this plaintiff, ran- and operated a locomotive engine belonging to said railway company in charge of said engineer over said railway, going east and opposite to the direction in which the said -speeder was going, at a high and dangerous rate of speed, and without warning or notice and carelessly and negligently ran said locomotive engine upon and against said speeder on which plaintiff was then and there a passenger, striking and colliding with said speeder with great force and violence, thereby wrecking said speeder and hurling plaintiff to the ground with great force and violence.”

It is the contention of appellant that two separate acts of negligence -are alleged: that the giving of the erroneous information and assurance (a) is not actionable negligence; (b) -has no> casual connection with the accident; (c) that the plaintiff and the person giving the information were fellow -servants. It is further contended by appellant that the engineer of the engine which collided with the speeder was the fellow servant of the plaintiff, that the plaintiff was not a passenger, and that the provisions of chapter 206 of the Laws of 1911 do not apply.

It is the contention of respondent that the negligence of defendant in failing to furnish respondent a safe place in which to work, coupled with the negligence in running the engine are not disassociated acts of negligence, hut that they are connected, and that, coupled together, they became the proximate cause of the injury; that the ordering of respondent out to meet an approaching engine, after first assuring him that he would have a clear track, and then running an engine upon him, without notice and warning, constitutes actionable negligence; that the person who gave the order and assurance was not a fellow servant with respondent; and that, even if they, were fellow servants, the provisions of chapter 206 of the Laws of 1911 apply.

[1, 2] It will be noticed that all of the acts charged are alleged to have been done by the defendant company. With the ex- • ception that the act of running the engine was the joint act of the company and the engineer, it is not alleged that any of said acts were done by the servants or employes of the company. This was good pleading. Baylies, Code Pl. § 7. Under these allegations, proof was admissible of the acts of the servants of the company within the scope of their authority. Shull v. Arie, 113 Iowa, 170, 84 N. W. 1031; Chesapeake & Ohio Ry. Co. v. Thieman, 96 Ky. 507, 29 S. W. 357; Bennett v. Judson, 21 N. Y. 238; Hildebrand v. Toledo-Wabash & Western Ry. Co.; 47 Ind. 399.

[3] But it is claimed by appellant that under such allegations it will be presumed that the person giving the assurance and information as to the track being clear was the fellow servant of the respondent. Cases are cited in support of this doctrine. We cannot adopt this reasoning. While it is true that by reason of the fact that the defendant is a corporation, it must act through its officers, agents, or employes, there is no necessary inference of fact that the servant in this case was a fellow servant with respondent. Neither can- we assume, as claimed by respondent, that the person giving the assurance and information was the alter ego or vice-principal of the defendant company. These are questions that do not arise upon the face of the complaint. They are, therefore, not raised by the demurrer, and are not before us for determination.

[4] It appears that the respondent was at Mob-ridge in pursuance of 'the duties of his employment; that he was ordered by appellant to board the speeder and proceed westward to Moreau Junction; that 'before obeying such order he made inquiry regarding trains on the track;' and was informed and assured that he would have a clear track to Moreau Junction; that such information was negligently given, because at that time an engine was proceeding eastward on said track at a high and dangerous rate of speed; that he departed westward at 10:30 o’clock in the evening; and that, without any notice or warning of any kind, the speeder was run down by said engine, and respondent was injured.

It is clear to us that two distinct acts of negligence are not alleged in the complaint, but that the two, coupled together, constituted the proximate cause of the injury. The complaint states a cause of action against the defendant railway company.

The order overruling the demurrer is affirmed.