Lead Opinion
dеlivered tbe opinion of tbe court. After stating the facts as above reported, he continued :
1. As to the challenge to a juror. . It appears that one Weaver, summoned as a juror, testified that he was a lumber dealer, and that the company gave him a place on its right of way for a- lumber yard, without rent., and also that he had heard the accident to the plaintiff- spoken of and explained. It was not shown, however, that he had any actual bias for or, against either ‘ party, or any belief or opinion touching the merits of the case. He was, nevertheless, challenged, and the allowance of the challenge constitutes the first error assignеd. It does not appear whether the challenge was for cause or was peremptory. Under the statute of Dakota each party is entitled to three peremptory challenges. It is for the party asserting error to show it; it will not be assumed. But if we regard the challenge as for cause, its allowance did not prejudice the company. A competent and unbiased juror was selected and sworn, and the company had, therefore, a trial by an impartial jury, which was all it could demand. United States v. Cornell,
2. The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict was a matter within the discretion of thе court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission
3. The dismissal of the suit at the close of the plaintiff’s case was moved on the ground that the plaintiff had failed to. establish a cause of action ; and in support of this position it is contended that the plaintiff was a fellow-servant of the officer' or agent of the company, who was-charged with the duty of-keeping the cars in order, and, therefore, could riot recover against‘the company for injuries suffered by reason, of the latter’s negligence, and that this exemption from liability is declared by the statute of Dakota.
The general doctrine as to the exemption of an employer from liability for injuries to a servant, caused by the negligence, of a fellow-servant in a common employment, is well .settled. When several persons are thus employed there is necessarily incident to the service of each the risk that the. others may fail in that care and vigilance which are essential to his safety. In undertaking the service he assumes-that risk, and, if he should suffer, he cannot recover from his employer. He is supposed to have .taken it into consideration when he arranged for his compensation. As we said on.a former occasion : “ He'cannot in reason complain if he suffers from -a risk which he has voluntarily assumed, and for the assumption of which he is paid.” Chicago & Milwaukee-Railroad Co. v. Ross,
It is equally well settled, however, that it is the duty of the employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe .materials, machinery, or other means, by which it is to be performed, and to keep them in repair and order. . This duty he carinot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants ' can be transferred, so as to exonerate him from such
In Flike v. Boston & Albany Railroad Co.,
In Corcoran v. Holbrook,
In Fuller v. Jewett,
In Ford v. Fitchburg Railroad,
In Shanny v. Androscoggin Mills, 66 Maine, 420, the action was by an employe of the defendants for injuries to her.hand caused by insufficient and defective covering to machinery and gearing, which she was employed to clean. On the trial the. defendants contended, among other things, that" if the defective covering was owing to .the negligence of a fellow-servant, whose duty it was to repair it, they were not hable: But the court said, “ that the person whose duty it was to keep the, machinery in order, so' far as that duty goes,,was not,.in any legal sense, the fellow-servant of the plaintiff. To provide machinery and keep it in repair, and to use it for the purpose'' for which it was intended, are very distinct matters. ■ They are not employments in-the same common business, tending to the ' same common result. The one can properly be said to begin only. when the other ends. The two persons may, indeed, • work under the same master and receive their pay from the same source.; but this is not sufficient. They must be at the time engaged in a common purpose or employed in the same general business. ¥e do not now refer to the different grades of services about which there is considerable conflict of opinion,, but of the different employment. - In the repair of the machinery the servant represented the master in the. performance of his part of the contract, and, therefore, in the language of the instructions, his negligence in- that réspect is. the omission of the master or employer in" contemplation of law.’ ”
Numerous decisions from other courts to the same purport might be added. Bessex v. Chicago & Northwestern Railway Co., 45 Wisc. 477, 481; Wedgwood v. Chicago & Northwestern Railway Co., 41 Wisc. 478 ; Toledo, Peoria & Warsaw Railroad Co. v. Conroy,
According to the authorities cited there can be na.question ■as to the liability of the railroad company to the plaintiff for. the injuriеs' he sustained. If no one was appointed by the . company to look after the condition of the cars, and see that' the machinery and appliances used to move, and to stop them,' vtere kept in repair and in good working order, its liability for the injuries would not be the subject of contention. ' Its negligence in that case would have been in the highest degree culpable. If, however, one was • appointed by it charged with ■that duty, and the injuries resulted from his negligence in its ■ performance, the company is liable. He was, so far as that ■duty is. concerned, the representative of the company; his v negligence -was its negligence, and Imposed a liаbility upon it, i unless, as contended, it was relieved therefrom by the statute of Dakota. Section 1130 of the Civil Code of that Territory is in these words :
“ Co-employés. — An employer is not bound to' idemnify his employé for losses suffered by the latter in consequence of the. ordinary risks of the business in which he is employed, nor in consequence .of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe.”
The-next .section, 1131, is as follows:
“ Employee’s Negligence. — An employer must in all cases*653 ■indemnify .his employé for' losses caused by the former’s want of ordinary care.”
We do not consider that the first of these sections chаnges the lavy previously existing as to the exemption of an employer, ■from responsibility for injuries committed by a servant to a féllow-servant in the same general business, or identifies the business of providing safe machinery and keeping it in repair with the business of handling and moving it. The two kinds of business are as distinct as the making and repairing of a.cai;.riage is from the running of it. They are., as stated in the case decided- by the Supreme Court of Massachusetts, from which we have cited above, separate and independent departments of ser-, vice, though the same person'may, by turns, render service in each. The person engaged in the former represents the employer, and in that business is not a fellow-servant with one engaged in the latter. The words “ same general business ” in the section have reference to the general’ business of the department of service .in which’the employé is engaged, and do not embrace, ■business of every kind which may have some, relation to the'affairs of the employer, or even be necessary for their successful management. If any other construction were adopted there would, under the section, be no such thing as separate departments of service in the business of railroad companiés; for whatever would tend to aid in the transportation of persons and property would come under the designation of its general, business. The same section is in the civil code of California, and our construction of it accords with that of the Supreme Court of the State. In Beeson v. The Green Mountain Gold Mining Company,
We do not perceive that the provision of the sixth section of the Civil Code of Dakota, that in the Territory “ there is no common law in any case where' the law is declared by the codes,” at all affects the question before us. There cannot be two rules of law on the same subject'contradicting each other. Therefore, where the code declares the law there cаn be no ocpasión to look further; but where tbe code is. silent the common law prevails. What constitutes the “ same general business ” is not defined by the code, but may be explained by adjfidged cases. The declaration by the code of a general rule, which is conformable to existing law, does not prevent the courts from looking to those cases for explanation any more than it prevents them from looking into the dictionary, for the meaning of words.
Section 1131 of the Dakota code expresses the general law, as we have, stated it to be, that an employer is responsible for injuries to his employes 'caused by his own want of ordinary pare. His selection of defective machinery, which is. “to be moved: by steam power, is of itself-evidence of a want of ordinary «are, -and. allowing it to remain out of repair, when its •condition, is brought to his notice, or by proper inspection might jbé known, is culpable negligence. . Here, the cars had been defective for 'years.' The brakés weré all worn out, and their condition had-been , called to the attention of the yard
4. As to the alleged negligence of the plaintiff only a few words need be said. Of course, he was bound to. exercise care to avoid injuries to himself. If he had known, or might have-known by ordinary attention, the condition of the brakes and cars when he mounted the cars, and thus exposed himself to danger — -in other words, if he did not use his senses as men ■ generally use theirs to keep from harm — hе cannot complain of ■ the injury which he suffered. He had been employed in the yard only one day before the accident occurred, and it does not appear that the.defécts in the brakes or cars were brought to his notice, though there was some evidence that statements as to their defective condition were made in his presence and hearing. He testifies that he saw no defect in either of them, and was not apprised of any. The defect in the brakes was not patent to the eye; it could be known only from an attempt-to set-them, or by information from others. He had a right, therefore, to assume, without such information, that they were, in a сondition in which it was safe to mount the cars to set them, when ordered by the yard-master.
It was contended in the court below that the plaintiff might have inferred-, from the manner in which the cars were attached, that there was a defect in them. The manner of their attachment showed nothing as to the condition of the brakes;, and .the court left the question of his negligence to the jury. It instructed them that if, from the unusual appearance of the car upon which he was engaged, as, for instance, its being attached to the next car by chains, or if from any statements of the yard-master or car-repairer, he had reason to believe that the car in "question was defeсtive or had been broken, he .was
The verdict of the jury, upon these instructions and others of the Sаme- general purport, negatived any imputation of ■negligence on his part. We see, therefore, no error on the trial, and the judgment below must be
Affirmed.
Concurrence Opinion
concurring.
I concur in the opinion just delivered by Mr. Justice Field, and will add'- a few suggestions in support of the conclusion reached by the court.
It is contended, on behalf of the railroad company, that if it used ordinary care in the selection of the employe to whose negligence the plaintiff’s injuries are attributed, it is protected from liability by section 1130 of the Dakota code, even if such -culpable employé had superior or controlling authority over the injured employé, and even if the injuries were caused by the defective condition of the appliances and machinery provided by the.company through its agents for the use of the employé so injured. For — it is argued — the words “the same general business” in that section embrace "every branch or department of the. common employer’s business, • and no . distinction is ..therein made between employés in respect of grades or the ’. nature of the particular service rendered by them. Even if that were admitted to be a proper construction of section 1130, .standing by itself, the inquiry still arises as to the object of section 1131, .which declares that the employer “ must, in all oases, indemnify his employé for losses caused by the former’s want of ordinary care.” The latter section was plainly intended to cоver ■ cases not provided for in the preceding sec
"What case is more distinctly within "section 1131 than, one where, a railroad company" fails to appoint some one to provide and maintain machinery and appliances safe and suitable for use by its employés, or where its a^ent or employé, appointed-to that duty, does not exercise ordinary care in its- discharge'? Such an agеnt or employé is, of necessity, the representative of the corporation, and his- want of ordinary care, in respect of such matters, is negligence upon the part of the corporation itself. It cannot, in reference to those matters, whatever it may, be permitted to do in reference' to other matters connected with its business, “ interpose between it and the servant who has been injured, without fault on his part, the personal .responsibility of an agent.” That is clearly shown in the opinion of. the court. Between an agent;; charged with the performance • of the company’s duty to prove and maintain safe and suitable appliances and machinery, and the employés who use them, the relation of fellow-servants does not exist. The want of ordinary care upon his part, is, in the' language of section 1131, ' and according to the weight of judicial authority, a want of ordinary care upon the part of the corporation itself. This case, therefore, comes within that section.
The Civil Code of Dakota (sections 6 and 2129), provides as follows:
' “Sec. 6. In this Territory there is no common law, in any case where the law is declared by the Codes.”
“ Seс. 2129. The rule of the common law, that statutes in .'derogation thereof are to b,e strictly construed, has no application to this Code. This Cpde-, establishes the law of this. Territory respecting the subjects to which it relates; and its provisions' are to be liberally construed, with a view to effect ■its objects and to promote justice.”
The rules of the common law are, therefore, not applicable, in Dakota, in any case where the statute law is declared in the •.Civil Code, on the subject, and that statute law is not to be construed- strictly, but liberally, with a view to effect its objects and to promote justice.
■Now, what, is the statute law of Dakota on the subject involvеd in this case? It is-found in sections 1129, 1130 and 1131 of the Civil Code, as follows:
"Sec. 1129. An employer must indemnify his employé, except as prescribed in the next section, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his ■ obedience to the directions of the employer, even though unlawful, unless- the employé, at the time of obeying such directions, believed them to be unlawful.
“Sec. 1130. An employer is-not bound to indemnify his employé for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable.employé.
“ Sec. 1131. An employer must, in all cases, indemnify his employé for .losses caused by the former’s want of ordinary care.”
These provisions are very clear. The language used in sec
By section 1129, the railroad company is not bound' to indemnify Herbert, except as prescribed in section 1130, for what he necessarily expended or lost by discharging the duty he did, in reference to the freight cars. What is prescribed in section 1130 is this: The company is not bound to indemnify Herbert for what he so lost in consequence of the negligepce of his co-employés in the same general business, unless the company neglected ordinary care in the selection of such coemployés. No want of care in such selection is alleged, and the action is sought to be maintained, and the verdict for the plaintiff tíiay have been rendered, not оn the neglect of the corporation itself to provide and maintain suitable cars, brakes, draw-bars, and bumpers, but on the neglect of inferior employés of the corporation to keep them in repair. This is clearly shown by the refusal of the Court to .instruct the jury, • as requested by. the defendant, that the plaintiff could not recover by “ reason of any acts of negligence on the part of any - other persons employed by the defendant in the same general. business with the plaintiff,” and that “this would include the-yard-master and car-repairer; ” and by the fact, that, on the contrary, it instructed them, that “the negligence of those entrusted by the corporation with the pоwer and duty of procuring or keeping in repair such machinery is, in law, the negligence of the corporation.”
It is sought to destroy the application of sections 1129 and 1130 to this case, by invoking the rule set forth in section 1131, that “ an employer' must, in all cases, indemnify his employé for losses caused by the former’s want of ordinary care,” and by saying, that, in this case, the company did not exercise ordinary care, because the co-employés of Herbert were guilty of .the negligence which caused his injury. But that is the very
It is a rule for.the -construction of statutory provisions, especially those embraced in the same statute, that all must be construed so that all shall have effect, .if possible. There is ample scope for the application of section 1131, by limiting it tó cases not embraced within section 1130. Otherwise, no force is given to section 1130.
The failure to give proper effect to section 1130 is the more marked, because," with one exception, the only authorities cited’ in the opinion of the court, to sustain its views, are cases decided' where the common law prevails, and not where such statutory provisions as thosе in Dakota exist — provisions which declare that the common law is abrogated as to the subject-matter of the controversy in this suit.
Sections 4, 1969, 1970, and 1971, of the Civil Code of California, are the same, respectively, as sections 2129, 1129,1130, and 1131, of the Civil Code of Dakota. But there is nothing in the case of Beeson v. Green Mountain Gold Mining Co.,
Considering the case to be governed by the. local statute, we express no opinion upon the question whether the instructions given to the jury accorded with the rules of the common law.