69 F. 124 | 9th Cir. | 1895
Julia Craft, the administratrix of the estate of Benjamin P.Craft, deceased, brought an action in the circuit court of the United States for the district of Oregon against the Northern Pacific Railroad Company to recover damages for the death of the plaintiff’s intestate, alleging that on August 15, 1892, while said Benjamin P. Craft was lawfully engaged in the course of his employment as a car accountant of the Northern Pacific Terminal Company, the defendant carelessly and negligently, without ringing a bell or having sufficient lights displayed, or giving warning, or keeping a lookout on the track in front, ran one of its engine's over the said Benjamin P. Craft, causing his death. The defendant denied this averment of negligence, and asserted the defense of contributory negligence, alleging that the accident resulted from the negligence of said Craft in being intoxicated, and while in that condition lying down and going to sleep upon the track. The deceased was a car accountant employed by the North (mi Pacific Terminal Company, a corporation which had charge of the yards, station, and other terminal facilities at Portland, which were jointly used by the Northern Pacific Railroad Company, the Union Pacific Railroad Company, and the Southern Pacific Railroad Company, under contracts with the said Northern Pacific Termina,! Company. The work of the said deceased consisted in taking the numbers and weights of cars that were brought into the yards by the various railway companies, and such service required Ms presence in different parts of the yards. The accident which caused his death occurred at 2 o’clock in the morning. He was last seen before the accident: at about 1:30 o’clock. At that time he was about three or four hundred feet north of the depot, going north on the platform alongside the track, and carrying a, lighted lantern. The engine that caused Ms death came in at about 12:45, with a passenger train, and was shortly afterwards taken about a quarter of a mile north of the depot to the coal bunkers, there to be coaled up, and it was in charge of Stapleton, an engine hostler, and Berry and Cobb, two engine wipers. After being coaled up, the engine started back toward the depot, on its way to the roundhouse. Two switches had to be thrown to enable it to run to the roundhouse, one connecting the coal-bunker track with the main line, the other the main line witli the roundhouse track. A plank platform extends from the depot to a point about 50 feet north of where the deceased was struck. There are two tracks upon this platform. The switch connecting with the roundhouse track is about 200 feet south from the
Error is assigned to the action of the trial court in admitting evidence tending to show that Stapleton, who was in charge of the engine at the time of the accident, was intoxicated, or under the influence of liquor. It is contended that the complaint contained no allegation of such intoxication, and did not allege the same as a specific- act of negligence, and that there was consequently no ground upon which such evidence was admissible. The evidence so admitted was the testimony of the witness Berry, who said, in answer to a question concerning Stapleton’s condition, that he did not know whether or not Stapleton had been drinking that evening, but that he had on occasion seen him drink a glass of beer, and he finally stated that he thought he had seen him drink one glass that night. There is nothing in this testimony which > would tend to show that Stapleton was intoxicated at the time of the accident, and it is impossible to perceive how the plaintiff in error could have been injured thereby. But, in any view of the purport of that por- ■ tion of the evidence, there was no error in its admission. The fact, if proven, that the defendant’s servant whose negligence may have caused the injury was intoxicated at the time of the accident was not in itself an act of negligence, but it was a circumstance to be considered with the other evidence tending to prove the charge laid in the complaint. The negligence, if any there was, upon the part of the defendant’s servants, consisted in their failure to take proper precautions while driving the engine through the yard, not in the fact that Stapleton or any one else was intoxicated. But evidence of such intoxication might properly be considered in connection with the other proof which was adduced showing Stapleton’s actions and conduct at the time the accident occurred. Wynn v. Allard, 5 Watts & S. 524. Williams v. Edmunds, 75 Mich. 92, 42 N. W. 534.
It is also assigned that the court erred in declining to instruct the jury, at the close of the testimony, to return a verdict for the defendant. It is contended that such instruction should have been given, upon two grounds—First, that there was no evidence of
Nor do we find in the record sufficient proof of contributory negligence on the part of the deceased to have justified the court in taking the case from the jury. There was evidence, it is true, that he had been drinking that night, and was intoxicated, but the testimony upon this point was conflicting. The last person who saw him before the accident was Millaine, who says that at half past 1 o’clock'he was pretty full, but was able to do his work. At that time he was going north from the depot, probably to take account of the cars that had been brought in at 12:45. It is in evidence that in the performance of his duty he carried with him two books, in one of which he made entries of the weights of the cars, and in the other he kept account of cars forwarded and received. The first of these books was in evidence showing entries made that night, and there is nothing in the nature of the entries to indicate that his work was imperfectly performed. The other book, that in which would have been found, if made, the entries of the last train of cars, was not produced or accounted for by the defendant. The defendant’s contention that the deceased was lying upon the track at the time of his injury, or had been lying upon the track at any time that night, rests upon conjecture, and is unsupported by evidence. The fact that the lantern was overturned and extinguished and lying off the side of the track at the point where the deceased was struck, and the further fact that he was probably carried a distance of 150 feet after he was struck and before he passed under the wheels of the engine, would tend to sustain the theory that he was walking on the track at the time, rather than that he was lying upon the same intoxicated. Under such evidence, it is clear that the court would not have
It is urged that the deceased and the employés of the defendant who were in charge of the engine were fellow' servants, in a common employment, and that therefore there can be no recovery by the administratrix. It is said that Stapleton was moving Ms engine along the tracks of the terminal company in pursuance of an arrangement between that company and Ms employer, and that he and the deceased, who was a car accountant, were both engaged in an employment necessarily bringing them in contact with passing engines, and that they both had the immediate common object of moving, checking, and caring for the cars and engines of the defendant in the yards of the terminal company, It is true that Craft's duties were to check up the cars that came into the yard, whether they belonged to the Northern Pacific Railroad Company or to other companies, but, so far as the record indícales, he was in a, distinct and separate employment from that of Stapleton, and he and Stapleton were in no sense under a common master, or subject to the same control. Stapleton’s duty was solely to Ms employer, the Northern Pacific Railroad Company, while Graft, on the other hand, owed no duty to that company, but his duty was to his employer, the terminal company. In talcing account of the cars of the Northern Pacific Company, he war*, not acting for that company, or in its serviue, but for his employer, and presumably for purposes connected with the business of libs employer, by whose permission or contract the cars of the different lines came and went. The fact that three railroad lines in common used the tracks and yards of the terminal company, and the fact that the deceased, while in the regular discharge of Ids duties, was exponed to the risk of injury from their passing’ engines, does not affect his relation to those companies. In entering the service of the terminal company he assumed the ordinary risks of his employment, one of which was the risk of injury from his fellow servants; but the employés of the railroad companies who used the tracks were riot his fellow servants, and he assumed no such risk as to them. If the relation between the terminal company and the Northern Pacific Railroad Company had been such that all operations of the servants of both, while in the yards of the
“Whatever effect this agreement had upon the parties to it, it could not have any upon strangers to it, nor alter nor change the relation of either of them toward third parties, nor have the effect of making those who were employed and paid wages by either of the contracting parties the employés of the other parties.”
In Phillips v. Railroad Co., 64 Wis. 475, 25 N. W. 544, there was an agreement by which the Wisconsin Central ran its trains a short distance over the defendant’s road, but on times, orders, etc., of the latter company. ■ The deceased was employed by the Wisconsin Central, and was killed while on the defendant’s road, by the negligence of defendant’s servants. The court held that the employés of the two companies were not fellow servants, for the reason that the employer of the injured man had nothing to do with the selection of the negligent servants of the defendant, and had no power to dismiss them, and the deceased was not paid or employed by the defendant, but by a different and independent corporation. There are some cases which apparently hold a different doctrine, but it will be found that the decision in those cases was controlled by the fact that, by contract between the employer of the seiwant who was injured and the employer of the servant who was negligent, the control of the property which was jointly used was vested in one or the other of the two employers, and that thus a common control was established over all the, employés of both. Thus, in Railroad Co. v. Clark, 2 Ill. App. 596, it was held that where a railroad company leases of another the right to use its track, the employés of both roads will be deemed fellow servants. But the decision was expressly based upon the stipulation of the lease which provided that the road should be used subject to the control, rules, and orders of the lessor company, and the court entertained the view that the lessor company became thereby the common master of the employés of both roads. The case of Johnson v. City of Boston, 118 Mass. 114, is relied upon by the appellant. That decision, however, also comes within the rule of the case last mentioned. The plaintiff was employed by a contractor, who had engaged a large number of men to drill and blast rock for the city of Boston, in constructing the sewers of that city. The city also, by its superintendent of sewers, employed other servants in the same work. Some of the latter caused the injury to the plaintiff for which he sued the city.