*1 1885.' Statement of Facts. NORTHERN PACIFIC RAILROAD COMPANY
HERBERT. ERROR TO THE SUPREME OF THE TERRITORY OF DAKOTA. COURT
Argued December 4, 9, 1885. February 1, 1886. —Decided juror When the challenge allowance of a assigned to a error, cause is as it appear should peremptory was not if peremptory it challenges are allowed. An challenge juror allowance of a to a for cause and the selection of another competent juror in place, unbiased works prejudice no to the other party. below, not is error that the court to after motion' set a aside verdict as exces- sive, granted ordered that motion should unless should by excess, at once remit the amount deemed the court to be in but id that judgment case the motion should be denied and entered for the remainder. employer An injuries by is not liable servant caused the negligence of a employment; fellow-servant in a common but this exemption does not injuries extend to or neglect caused the carelessness person of another in the master’s service in an not employment common to in per- that which the injured subject son in engaged, regard is to which a injured right diligence has a to look for care and ' person representative as the common master. If appointed no one by railway company is a to look after condition of its ears, and see appliances stop to move and to used order, working kept good in it is liable for the them in in- juries charged duty, thereby. appointed If with that one is negligence performance, and the result from his in is, concerned, duty representative is so is liable. He far company. indemnify A statute employer which enacts that an is not bound to his em- ploye consequence for losses in suffered the latter risks of employed, consequence the business in which he nor ” person employed apply of another does not in the same business employe losses suffered of another person, by. gen- in another the same eral business. provides A statute where that “there is no common case law. law is declared the codes does not take from the court the referring meaning the common order to determine the a term law in codes, they used in the when fail to define it. The Northern Pacific Railroad is a Company corporation created under the to construct a railroad and laws Congress CO. HERBERT. PACIFIC R.R. a. Statement of Facts. In Lake Sound. line from Superior Puget telegraph Duluth, and was road from had constructed operating On the 24th October Bismarck, Dakota.
Minnesota, *2 in the defendant below, in the court that the of year, plaintiff Bismarck, at where 'its a brakeman in its was here, yard error tracks and its trains were different cars were switched upon nn to his madé for the road. was duty, things, up among cars and and to the brakes of the whenever set loosen necessary, do the At the time Avheneverordered so by yard-master. .to two' ordered mentioned, brakes, cars,, he was the to-stop, a track In had switched the obedi been yard. upon the rear car and to to he went attempted ence this .order the brake broken attached to was so it, badly the brake set As it be work. soon of that could not made to and out order discovered, in order to this he on the forward car he stepped a and order it. on that car was The brake step-brake,” stop foot attached his to work he was place step obliged and car the this his foot be below and top, brought leg was also out of and order, the cars. This brake tween two to set his foot the car it, while step, being upon attempting car on and was track, another struck suddenly stopped. rear car out, draw-bar and had been The pulled bumper for them the one cars, and want of two when the forward came so suddenly stopped, violently together, crushing leg, that became To for recover amputation necessary. damages he this action com sustained injury brought against that was its and safe duty provide pany, alleging good and and of a for like character brak cars, machinery, apparatus make them, and and also to rules and handling regulations ing them the for yard, switching handling notifying so the condition defective and cars, of broken employes not be but that it they might subjected unnecessary danger; in -these without his oarticulars, neglected duty thereby, he was as stated. fault, injured
In its as to the answer admitted allegations had and the he received, employment plaintiff but set did that it was his he know know, and that up condition each he cars, carelessly put TERM,' 1885!
Argument'for Plaintiff Error. them between when brake setting ’forward oaf, leg ancl thus, his own fault, suffered the through of which injury he complains. There was .a verdict in A -plaintiff $25,000. favor motion for a new trial made on various groundsátnong others, were excessive. The' court damages ordered hewa trial be unless he remitted $15,000 the granted and in verdict, case did so that motion be denied. He amount, .remitted was entered his favor judgment (cid:127)for balance, and costs of which the suit, Court of Supreme affirmed. defendant The then sued this writ Territory .out of error.
For the reversal several errors judgment the court below are but, so far as are deemed assigned; they material, reduced a they may four:. to a sustaining, challenge in2, on new trial condition that the 'juror; denying should remit a of the sum awarded verdict; 3, in *3 suit at the close of .the refusing, case; plaintiff’s dismiss that the should charge have taken refusing plaintiff 4, notice of defects and that he cars, of such guilty in that as to of a respect deprive,him right recover.
Mr. W. P.
in error
Glough
(Mr. George Gray,
him
toas
cited Strauder
brief)
challenge,
v. West
Walker Boston & Maine Railroad
128 Mass.
Lan
Co.,
8;
v. New York Central
ning
Railroad
Hun) v. Northwestern 50 77; Co., & Flannagan Chicago Railway Wisc. New Brick v. York & 462; Rochester, Pennsylvania N. Y. 98 Railroad Co.,
Mr.
Wilson for
Thomas
defendant
error cited as to the
it was without
v.
Heaston
Cincinnati
challenge,
prejudice,
& Fort
208, Florence Machine 54 Y. 213; Co., N. Hayden Sewing 221; v. Boston & Maine 49 Railroad N. H. Co., 358; Belknap Collins 35 Iowa, v. Council Union City Bluffs, 432; Rolling v. 100 52. Ill. Gillen, Mill Co. tbe delivered of tbe court. After opinion Field Justice
Mr. the facts as above : continued stating reported, . 1. a As to the It that one challenge juror. appears as a Weaver, summoned testified that he was a lumber juror, and that the him a on its dealer, company gave place right for a- without and also that he had way rent., lumber yard, heard the accident of and It plaintiff-spoken explained. or, was not shown, that he had actual bias for however, any ‘ either belief or against party, opinion touching merits case. He was, nevertheless, challenged, allowance constitutes the first error challenge assigned. It does not whether the was cause or was appear challenge Under the statute of Dakota each en peremptory. party titled three It is for the peremptory challenges. party error to it; show it will not be assumed. But if we asserting as for
regard allowance did not challenge cause, A and unbiased prejudice company. competent juror sworn, selected had, therefore, trial which was all it could demand. jury, impartial v. Cornell, Mason, United States v. 104 Cincinnati ; Heaston 2 & Fort Railroad 16 Wayne Co., 279; Ind. 275, Atchison, Santa <& Fé v. Railroad Topeka Franklin, Kansas, 74; Co. v. 10 Ind. Carpenter Dame, 130; Morrison Lovejoy, Minn.
2. The as a condition of exaction, a new trial, refusing should remit a of the amount awarded portion the verdict was a matter within the discretion of the court. held amount found excessive, but that no error had been committed on the trial. In the remission requiring *5 NORTHERN PACIFIC R.R. CO. v. 647 HERBERT.
Opiíiion Ofthe Court. it did excessive than of what deemed more nothing require of so much of as, relinquishment damages opinion,, had awarded. The corrected verdict jury improperly allowed to stand. could, therefore, v. The properly Hayden 54Co., Florence Machine N. Y. Sewing 225; Doyle Dixon, Little, Mass. 3 213; Mason, 102, 97 Blunt v. 107.
3. The dismissal of the suit the close of the at case plaintiff’s was moved on the failed to. ground plaintiff had establish a cause of action this ; it is support position contended that the was a fellow-servant of the officer' who with the of- agent company, was-charged duty the cars in order, and, could riot recover keeping therefore, reason, for suffered against‘the injuries latter’s and that this from negligence, exemption liability declared statute Dakota.
The doctrine as to the of an exemption employer from to a liability injuries servant, negligence, of a fellow-servant in a common is well employment, .settled. When several are thus there is persons necessarily incident to the service of each risk that others may the. fail in that care and which are essential to his In vigilance safety. and, the service he if assumes-that he should risk, undertaking suffer, he cannot recover from his He is employer. supposed to have .taken it into consideration when for his arranged As we said on.a former occasion : He'cannot compensation. in reason if he suffers from -a risk complain which he has assumed, and for the of which voluntarily he is assumption paid.” Ross, & Milwaukee-Railroad Co.v. Chicago U. S. 377, 383.
It is well that it is the settled, however, equally duty to select and retain servants who are fitted com and to furnish service, sufficient safe petent .mate rials, or other which is to be means, machinery, performed, . and to them in and order. This he carinot keep duty to a servant so as to delegate himself exempt liability caused to another servant its omission. Indeed, no of him for the of his ser required safety protection ' vants can be so as to exonerate him transferred, from such
Opinion of the Court. The servant not undertake to incur does liability. risks from the want of sufficient and skilful arising co-laborers, from defective or other instruments with which he *6 is to work. His contract to these mat implies regard will make ters that no adequate provision danger to him. ensue This doctrine has been so shall as frequently serted courts the that it can character, highest hardly be as to serious It was any longer open question. considered declared in the recent case of v. substantially Hough Railway 100 Co., that, U. S. where we said 213, 218, a. notwithstanding railroad controlled watchful corporation may by competent, and and care and caution are exercised in directors, the prudent selection of at head subordinates of the several branches of its its still remains service, to and maintain obligation provide in.a suitable condition the and to be used apparatus ; and that' it of such mat employés cannot, respect it between and the ters, servant, who has been in interpose without fault on his. part, jured personal responsibility who, master’s has vio agent, exercising authority, .an to owes, lated the as well the servant as to the cor In that case the of the railroad, poration.” engine coming with an was thrown from the track animal, contact over embankment, ah the whistle to fastened whereby boiler thus out, was forced hot water and steam to permitting escape, as which so scalded to cause his death. The en engineer thrown from the track was because the cow-catcher or gine was whistle was forced out defective; because it pilot fastened. These defects were insecurely owing of the master-mechanic and the foreman company’s negligence round-house, whom was committed exclusiveman of the motive with control over agement power company,- all In the widow and an action engineers employed. that, child of the deceased the defense if set as a company up defects existed, denied, which it were alleged owing they servants, to the those for which the company The court held that the was not thereby company liable. exonerated liability. &
In Flike Boston 53 Y. it Railroad N. Albany Co., pacific go. 649 Herbert. Northern «. r.r.
Opinion of the Court. [1] was held Court of that a New York Appeals corpora-' want,of tion is liable to an proper care of such acts and it was to' duties as respect required as master or without to the rank or perform principal, regard title of the entrusted with their and that agent performance, such, acts occupies’ agent place .corporation, hat latter deemed to be present consequently the manner which it liable->for they There performed. the accident; which caused the appeared injury complained of, was in an insufficient number brakemen on the cars of the The fact that the had company. whose business was to the trains, make agent, up hire' and station the brakemen, despatch prepare did trains, not relieve it from liability. v. Holbrook,
In Corcoran Y., 517, N. appeared .defendants cotton operated mill, management *7 no but entrusted to a they gave personal attention, elevator, with full the mill an used was the agent power. by In unsafe, which out és, became of of-which the employ repair and, had notice. He to have it agent an neglected repaired its fall. The- held that the court de employe injured by fendants were that the liable, ,a was not mere general agent fellow-servant, the owners, of the that occupied place could not, their to another and they by delegating authority themselves, absenting escape liability non-perform “ of duties ance owed their As to said they acts,” employes. “ the which master or bound court, is as such to principal towards his if he the employes, perform performance delegates them an of the of the agent, agent occupies master, place ana the latter is which, deemed and liable present the.manner are
they performed.” In Fuller v. 80 N. Y. Jewett, 46, an Erie engineer killed of the boiler of a loco- Rail.Way-was explosion motive, its defective condition. To the action caused it was administratrix, contended that the brought by negli- in not mechanics the'boiler a safe gence con- keeping dition was the of his in the service of co-employés it was not But which the court company, responsible. .
Opinion of the Court. decisions affirmed the cited, held already principle master, that an or which the is bound to such, act duty per of his form for the cannot be safety protection employés so as to him from to a relieve servant liability delegated injured its whether omission or the non negligent performance, of a or misfeasance be that inferior feasance officer, superior of the act or to whom the servant, doing agent, perform “ has been In in re case, committed. duty either ance to such act or said court, “the"servant who duty,” spect or omits to it is the perform representative undertakes and not a mere co-servant with the one master who sustains the Foster Iron Co., Pantzar N. Y. Tilly v. injury.” that is to the same court, decided the effect. present’year by Railroad, 110 Mass. Ford In Fitchburg was a action for explosion engine .similar defence "was that made, out of the same boiler repair, ¡want of a fellow-servant owing the court said, repairs, .but agents department with the safe are duty charged supplying machinéry who true of the rule relied sense to be on, are re not, of those who are as fellow-servants engaged opera- garded ’ a master’s are it. his servant. They charged ting in distinct and independent They departments there is no service, difficulty them, even distinguishing service turns in renders each, the'Same as the when In one the convenience of master. may require. if cannot 'agent’s escape negligence; And in the other he the court held mayl” servant injured in a to instruct was no error refusal the cor there jury was not liable unless plaintiff proved poration presi *8 directors or either dent, knew, superintendent, personally in the of their of reasonable care duties performance exercisp have of the existence of the defect known, might engine which to caused the or that explosion, persons employed have it in were incompe charge engine keep repair “ tent not the offi ; was whether observing question cers of the defect or of known, have knew;-or named might had but of those .of repairs, who charge incompetency R.R. PACIFIC CO. v. HERBERT. 651
Opinion of the Court. whether the of its corporation any part organization, any, care', of its or for want failed to exercise agents, agents, due to defects in prevent injury instrument to. furnished for use.”
In 66 v. Shanny Mills, Androscoggin Maine, 420, action was of the defendants for to employe her.hand insufficient defective covering machinery which she gearing, clean. On the trial the. employed was defendants contended, other that" if among the de things, fective .the of a owing covering fellow- servant, it, were not hable: duty repair they whose But court said, whose it was to duty keep the, in order, so' far as that machinery not,.in goes,,was sense, fellow-servant of the any legal To plaintiff. provide it in and to use it machinery keep repair, purpose'' which was are distinct intended, matters. very They ' not in-the same common business, employments tending common The one same result. can be said to properly begin (cid:127) ends. The indeed, when two only. persons may, work under master and receive their from the same pay this is not same sufficient. source.; at must They time in a common in the purpose engaged business. ¥e do now refer to the different grades services about there is conflict of considerable opinion,, - but of the different In the employment. the servant the master in represented the. per of his formance of the contract, and, therefore, instructions, in- is. language that réspect e employer contemplation th omission of the master or in" law.’ Numerous decisions from other courts to the same purport be added. Bessex v. Northwestern & Chicago might Railway 45 Wisc. 477, 481; v. Northwestern Co., & Wedgwood Chicago Toledo, 41 Wisc. Peoria & Warsaw Co., ; Rail Railway Co. v. 68 Ill. 560; Conroy, Drymala Thompson, road Minn. 40. doctrine laid down them is The specially appli common cable when the is a carrier passengers and steam is the inasmuch motive power, property, *9 Opinion of the Court. be followed defect serious disasters. machinery may him The same considerations which render such responsible arid safe transportation passengers oases property him should; to his also impose equal responsibility far as their and so the character safety depends upon employes, and used the trans machinery condition appliances is not Where employé guilty contributory portation. should no for an irresponsibility injury admitted .negligence, defective condition of him caused machinery -whichhe is with it could work, instruments required except been known not have care and guarded against by proper of his employer. vigilance cited authorities there can be According na.question n as of the railroad for. liability company sustained. If no one injuries' appointed by to look after cars, condition see that' . company used to move, appliances them,' stop and in order, kept vtere good working liability ' would not be the contention. Its subject injuries negli- in that case would have in the gence highest been degree (cid:127) one If, however, appointed by culpable. charged n and the resulted from his in its duty, negligence is liable. He so far was, as that performance, n is. concerned, representative company; v -wasits negligence, Imposed it, liability upon contended, i it was relieved therefrom unless, the statute Section 1130 of the Civil Code of that Dakota. Territory in these words : “ Co-employés.—An is not bound to' employer idemnify for losses the latter in employé consequence suffered the. of the business in risks which he is nor in ordinary employed, of another .of person employed by in the the same employer business, unless he has to use care selection of neglected ordinary the culpable employe.” is as .section,
The-next follows: “ Employee’s Negligence. —An must in all cases v, PACIFIC' R.R.' CO.' HERBERT. of the Court.
Opinion indemnify for' losses caused .his former’s want care.” *10 We do not consider that the first of these sections changes lavy the as to the previously existing of an exemption employer, n from committed responsibility a servant to a fél in low-servant the same business, or identifies the busi general ness of safe and init with providing machinery keeping the business of and it. The two kinds of handling moving business are as the distinct as and a.cai; of making repairing is from the are., it. as in .riage stated the case running They decided- Court of from which we Supreme Massachusetts, ser-, have cited above, and separate independent departments vice, the same render service though turns, in person'may, by each. The in the former the em engaged represents in and that business is not a ployer, fellow-servant with one en “ The words in gaged business latter. section have reference to the business of the general’ department embrace, of service which’the is and do not .in engaged, n businessof some, kind every have relation to the'af may fairs of the or even be for their successful employer, necessary If there management. were construction adopted under would, the section, be no such thing separate depart ments of service in the of railroad business companiés; whatever would tend to aid in the of persons transportation and would come under the of its property designation general, business. The same section California, the civil code of and our construction of it accords with that of the Supreme Court State. In Beeson v. The Mountain Gold Green Cal. Mining Company, defendant, a corporation a 'engaged quartz mining, appointed superintendent super vise and em manage mining authority operations, and laborers ploy at One of the mine. discharge laborer^ thus lost life in a engaged which' a de fire, originated fective a tinner pipe put under up by supervision superintendent, connected‘with the used to raise ore engine andtake water from the mine. did not that the de It appear ceased knew or had reason to know of the defect. In an action his widovvfor of his it was death', damages consequence’
65é 1885’.
Opinion of the Court. held, contention, that the against company, superin tendent was not a of the deceased in the sense fellow-employé section; intended that, purposes managing business what should used and determining machinery how he was the placed, representative company, that the deceased was not bound to know whether defect ex isted in the not within his appliances view, had a of the com right rely implied engagement (cid:127) and constructed. pany pipe placed properly was also held that the tinner his share of the performing work was not a fellow-servant that as deceased; was done under of-the. the direction work supervision super intendent, it was if the same as done superintendent person. We do of the sixth section of perceive provision
the Civil Code of Dakota, that there is no Territory *11 common law in case where' the law is declared any by at all affects the before us. There codes,” cannot be question two law on the same rules of each other. subject'contradicting where the code declares the there can law be Therefore, no oc- pasión to look but where tbe code silent the further; common is. law What constitutes the same business is general prevails. not the code, defined be by by may explained adjfidged rule, The declaration the code of a cases. which by general law, to does not courts conformable existing prevent is to for from those cases more than it looking explanation for them from into the the mean- looking dictionary, prevents of words. ing of the Dakota code
Section 1131 law, expresses have, it stated to that an is be, as we responsible 'caused his own to his want employes injuries pare. ordinary selection of defective “to be machinery, His is. want is of itself-evidence of a of ordi- moved: steam power, when nary -and. to remain out of its «are, repair, allowing (cid:127)condition, or to his notice, inspection brought proper known, jbé the cars had Here, is culpable . negligence. might worn out, The brakés all defective weré been 'years.' , of the had-been called to the condition attention yard- their CO.-y. PACIFIC R.R. HERBERT. Opinion oí the Court. while in the had control of them who
master, yard, might the officer Or have been ascertained, inspection, by upon proper them with the charged keeping agent in done to either brakes or cars. was repair, yet nothing that Under these circumstances cannot said the-company or with that officer exercised, through agent charged duty, to care cars and brakes condition, keep good it is therefore, under the of this section, and, bound provisions to indemnify plaintiff. As to the a plaintiff only few alleged need bound exercise
words be said. Of was to. care course, known, avoid to himself. If he had have- might known the condition brakes attention, by ordinary cars when he mounted the and thus himself to cars, exposed n if he did not words, use senses men danger—-in use theirs harm—he cannot keep generally complain which he He had suffered. been injury one before the accident and it not day occurred, does yard only the brakes or cars were appear the.defécts brought notice, was there some evidence statements as though to their defective condition were made in his presence He testifies that he saw no defect in either of hearing. them, not The defect the brakes apprised any. it could be known patent from an eye; only attempt- information set-them, from others. He had right, were, assume, without such therefore, information, they a condition which it was safe to mount the cars to set them, when ordered yard-master.
It was contended in the court below that the plaintiff might *12 from have the manner in inferred-, which attached, the cars were that there was defect them. The manner of their attach- ment showed as to the condition nothing brakes;, court left the his .the question negligence jury. instructed them that from the unusual if, of the car appearance which he was for its as, instance, attached engaged, being to the next car or if from chains, statements of by or yard-master he had reason to believe car-repairer, car was defective or "question had been he broken, .was 1885: . n
.Concurring J. Harlan, Opinion:. to take care not to bound which a expose injuries defective car broken and' cause; and, if might further, from the evidence’ that they found guilty n negligence’ in; not and safe providing proper of which neglect appliances, injury failed to still, if exercise received,- prudence, care, n men, caution under similar would circumstances, prudent and he exercise, .contributed ordinarily thereby approximately he was not entitled to recover. injury, The of the these verdict instructions and others jury, upon the Same- purport, general negatived any imputation We on his no error on the see, therefore, part. below must trial, and judgment
Affirmed. Mr. Justice Harlan concurring.
I in the concur delivered Mr. Justice opinion just by Field, add'- a few will of the conclusion suggestions support reached court. by on
It is of the railroad contended, that if company, behalf used the selection ordinary care whose employe attributed, plaintiff’s injuries protected section Dakota if code, such by even liability had over the superior controlling authority -culpable employé if and even were caused injured employé, defective condition of the appliances machinery provided use of the the.company through agents employé so For —it is injured. words “the same argued —the business” in that section embrace branch or "every department (cid:127) of the. common and no . business, employer’s distinction is ..therein made between employés respect grades ’. service rendered particular them. Even nature if that were admitted to be a construction of section proper itself, still arises as to .standing inquiry object declares that section .which in all employer must, oases,indemnify losses former’s want of care.” The latter section was in plainly tended cover cases not provided sec preceding *13 R.R., CÓ. ‘v. FACIFIO HERBERT. Harlan, Concurring Opinion : J.
tion. If section one applies corporations, equally . to them. The two sections must be construed applies together. And manifest so it is while statute construed, that, estab lishes is not bound to the rule employer indemnify “ for losses suffered the latter in of employé consequence of the business which he is nor ordinary-risks employed, of another person, employed same business,” it; ajso, declares two distinctness, to that with.equal exceptions rule: 1. has "Where use care in employer- neglected ordinary of the selection whose caused the losses employé 2. Where the'losses were- the-' employ question. er’srown of want care. The latter is as ordinary exception cannot, declared -isthe and former, be or explicitly ignored nullified construction. than, "What case is more within "section 1131 one distinctly
where, a railroad fails to some one to company" appoint provide and maintain and safe suitable appliances use or where its employés, employé, appointed- a^ent to that does not exercise care in its- duty, ordinary discharge'? Such an is, agent necessity, representative and his- want of care, corporation, ordinary respect such matters, it- negligence upon part corporation self. cannot, reference to those matters, whatever it may, to do in reference' to other permitted matters connected with its business, between and the servant who interpose been without has fault on his injured, part, personal .respon- of an That is shown sibility agent.” clearly opinion of. (cid:127) the court. Between an with the agent;; charged performance maintain safe suitable the company’s prove and the who use machinery, them, appliances employés of fellow-servants does not exist. The the relation want ' in the' care of section is, ordinary upon part, language to want according weight judicial authority, care This itself. corporation comes within that section. case, therefore, concurred with whom Mr. Mr. Justice Justice Blatchford, cxvi—43 vol. ,Blatehford, Matthews,
Dissenting Opinion Bradley, Gray, -. JJ. Mr. and Mr. Bradley, Justice dis Justice Matthews, Gray, . senting *14 Mr. Mr. Bradley, Justice Justice Matthews, Mr. Justice Gray in are unable to concur the of the myself judgment court in case. this of Dakota 6 and (sections
The Civil Code as 2129), provides follows: ' is no there common in 6. In this Territory law, “Sec. any the the law is declared Codes.” case where “ of the Sec. The rule common statutes in law, b,e thereof are to strictly construed, has no .'derogation applica- Cpde-, Code. This tion this establishes the law of this. to which it Territory subjects and its respecting relates; construed, are to be awith view to provisions' liberally effect n itsobjects and to promote justice.” The are, rules the common law therefore, not applicable, in in case where Dakota, the statute is law in any declared on and that Code, subject, statute law is not be (cid:127).Civil a liberally, construed- strictly, view to effect its objects promote justice. Now, what, is the statute law of in- Dakota subject in this case? It is-found in 1129, sections 1130 volved as Code, the Civil follows: An Sec. 1129. must his employer ex indemnify employé, " in as for section, next all he cept prescribed necessarily in or loses direct expends consequence discharge n such, or of duties as his obedience to the em directions of the even unlawful, unless-the though at the time ployer, employé, directions, such them believed to be unlawful. obeying An “Sec. 1130. is-not bound to his em- employer indemnify suffered losses latter ordin- ployé consequence risks of the business which he is ary nor in conse- employed, another quence same person in the same business, unless he has employer general neglected to use care in the selection of ordinary culpable.employé. “ Sec. cases, 1131. An in all must, indemnify for .lossescaused employé former’s want of care.” ordinary These clear. The used in provisions very sec- language HERBERT, R.R. CO. &59 PACIFIC v.. Blatchford, Matthews, Bradley, Gray, Opinion Dissenting : JJ. “another same employed by tion person employer.in 1130, in the business,” that, view of the the same general indicates another; Code three sections question, co-employé with, the same employé, by employer, person employed Therefore, wherever business. word same general one of the three sections, is used in means a such a who may co-employé. railroad is not to in- bound' section company By section Herbert, except prescribed demnify or lost what necessarily expended discharging cars. What is in reference he did, freight prescribed in is not is this: The bound to section indemnify he so lost for what Herbert negligepce business, unless the of his com- co-employés care in the selection of such co- neglected pany *15 in of care such selection is No want and employés. alleged, to be and the maintained, is verdict for the the action sought rendered, have been not on the of the tíiay neglect plaintiff itself to and maintain suitable cars, brakes, corporation provide on the of and inferior em- draw-bars, bumpers, neglect them in of the is This corporation keep repair. ployés (cid:127) the refusal of the Court to .instruct shown the by jury, clearly could defendant, not re- as by. requested “ - of of acts on the of cover reason any negligence by in defendant same by persons general. and that “this business with include the- would plaintiff,” fact, and and that, by car-repairer; yard-master instructed that “the of them, it those negligence contrary, and of with entrusted corporation power by pro- in such is, law, keeping curing of the corporation.” negligence of sections 1129 and is
It destroy application sought forth in 1131, the rule set section 1130 to this case, by invoking cases, all must, indemnify employé employer' and care,” of former’s want losses by ordinary did exercise or- case, this that, saying, were because the Herbert care, co-employés guilty dinary caused his But that is the which very .the injury. ' 660. ' Matthews,
Dissenting Bradley, Gray, Opinion : Blatehford, JJ. case section and 1130; the doctrine provided of the Dakota, court that even this, comes a railroad'cor- though board directors, its exercises poration, acting ordinary its care employés, provides adequate in the.selection outfit and machinery, appliances, competent prescribes use, for their rules ahd has no knowl- proper regulations defects in notice of and no them, circumstances- edge 'any exist it sufficient with such or notice, is charge knowledge within section care, 1131, .want of towards guilty án is who of his co-em- injured in the! same the mere business, fact of the plo’yés of such such happening injury through negligence, although Section declares, that, such a case, em- distinctly shall not be liable to the ployer injured employé. is a rule for.the -construction of statutory provisions, those embraced in the statute, that all
especially must be construed so that all shall have .if effect, is possible. There ample 1131, section scope application by limiting tó cases not embraced within section 1130. no force Otherwise, is to section 1130. given
The failure to effect to section 1130 is the give proper more marked, one because," authorities cited’ exception, only to sustain court, are de- opinion views, cases cided' where the common law and not where such prevails, those Dakota statutory provisions provisions exist— declare that the common law as to the abrogated subject- in this matter suit. controversy 4, 1969, Sections Civil Code Cali fornia, same, as sections respectively, 2129, 1129,1130, *16 Civil Code of Dakota. But there is nothing in the of Beeson v. Green case Mountain Gold Mining Co.,57 Cal. 20, cited of the court, which opinion majority sanctions the view that or the yard-master car-repairer “ a case was not the'present Herbert, business within the of such a statute. meaning the case to be the. local we statute,
Considering governed by no whether the express instructions opinion upon question to accorded with the rules the common given jury law.