| Ark. | Jan 6, 1894
Lead Opinion
This is a charge of direct negligence on the part of the company, and of itself involves no question of agency or relation or degree of service, for it is not to be thought of that rules and regulations, as here understood, are other than immediate directions of the master.
It is conceded everywhere that, in order to insure, as far as practicable, order and system in a dangerous and complicated business like that of railroading, it is the duty of the company to establish rules and regulations reasonably conducive to that end, not alone because its business may prosper the more, in that its conduct is thus made the more orderly and systematic, as it must necessarily do, but because another, and none the less important, effect of such reasonable rules and regulations must necessarily be to add to the safety and security of the.company’s employees engaged in the labor which the business demands.
Further than this, as was said by this court in the case of Railway Company v. Triplett, 54 Ark. 299-300 : “This seems to be the general rule of law, when the circumstances are such that a reasonably prudent person might rely upon rules and regulations to afford protection. But if the master sees proper to rely upon such methods of protection to his servants, and the occasion demands it, he should also adopt such measures as may be reasonably necessary to secure the observance of such rules.” In many jurisdictions the duty of seeing that the rules and regulations are enforced is expressed in stronger terms, but this court has never gone further than is indicated in the above extract.
It will be seen that the objection to the insufficiency of the rules of the company was confined to an allegation that, if the rules had been such as to require of the engineer of the freight train to sound his whistle on his approach to the quarry, it would have been sufficient, in this, that the men on the hand-car, a half mile or three-fourths of a mile away, could have or would have heard it, and, being at such a distance from the approaching train, could easily have got off the track in time to avoid all danger of collision, and that thus the life of the deceased might or would have been saved.
On the other hand, it is in evidence that the rock quarry not being a regular stopping place or station of any kind, in the meaning of that term, the engineer of a passing train was not required by the rules to sound the whistle on his approach to it, unless he was signaled from the men there at work; and then he was required to sound the whistle, not to notify them of his approach, but rather as an answer to, and recognition of, their signals.
The full details of the purposes for which the men at the quarry were required or permitted to put out signals to passing trains are not set forth in evidence, as would have been more satisfactory; but this much is shown, namely, that these men were to put out the signals when there were obstructions on the track there, and these signals were a green flag, advising the engineer to slow up and get his train under his control, and a red flag, to stop. It is further stated that the signals were to be regulated by the person in charge of the quarry. We gather, also, that there was a rule of the company (whether this same one or another, we cannot determine), which required any person placing an obstruction on the track to give the necessary signals to passing trains, and also that it was the duty of one finding an obstruction on the track to g-ive these signals at once. In all cases, it would seem from the evidence, the signals were to be placed at stated distances from the .point of obstruction, either way, and the distances named, we infer, were thought to be sufficient to enable the engineers to stop, or get their trains under control, before reaching the point of danger.
It will thus appear that the issue made amounts to nothing more than a controversy as to the relative value and efficiency of the rule suggested by appellee, and the one in vogue by the company ; that is to say whether the engineer of the approaching train should be required by the rules to sound the whistle as a warning to those at the quarry of his coming, or that the men at the quarry should give signals to him of any cause to slow up or stop, and he should sound the whistle in response to their signals, not as a notice of his coming, but rather that he has observed and will heed the warning made by the signals at the quarry. In the one case the whistle would always be sounded ; in the other, it would be sounded only as there was any special local reason for stopping or getting the train under control.
It is said in Railway v. Adcock, 52 Ark. 406" date_filed="1889-11-15" court="Ark." case_name="Railway v. Adcock">52 Ark. 406, (which was a case not unlike this one in respect to the rules and regulations of the railway company, although unlike this-one in the particular object of these rules, as therein stated) that, “the facts being uncontroverted, it was the province of the court to declare the regulations reasonable. To submit the question to the jury for determination,- under the circumstances, was simply to leave the matter to their discretion, which was error.” That the mere reasonableness of a rule or regulation is purely a question of law, and not of fact, as announced in that case, is supported by the following : Vedder v. Fellows, 20 N.Y. 126" date_filed="1859-09-05" court="NY" case_name="Vedder v. . Fellows">20 N. Y. 126; Ill. Central Ry. Co. v. Whittemore, 43 Ill. 420" date_filed="1867-04-15" court="Ill." case_name="Illinois Central R. R. v. Whittemore">43 Ill. 420 ; and inferentially by Hobbs v. Tex. & Pac. Ry. Co. 49 Ark. 357" date_filed="1887-05-15" court="Ark." case_name="Hobbs v. Texas & Pacific Ry. Co.">49 Ark. 357.
In Ill. Central Ry. Co. v. Cole, 43 Ill. supra, it is said, in explanation of the doctrine : “It was proper to admit testimony, as was done, but, either with or without this testimony, it was for the court to say whether the regulation was reasonable, and, therefore, obligatory upon the passengers. The necessity of holding this to be a question of law, and, therefore, within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent regulations can be established. If this question is to be left to juries, one rule would be applied by them today, and another tomorrow. In one trial a railway would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations.”
The rule in vogue, as shown in evidence in this case, does not in terms extend to the protection of employees passing from point to point on hand-cars while engaged in the legitimate prosecution of the company’s work. Perhaps the very meagre statements of the witnesses testifying on this subject were.confined to cases of obstructions at the quarry, because the minds of the witnesses were mostly directed to that point, in connection with the inquiry as to what was not the duty of the engineer of an approaching train, as to the men then at work; and perhaps a further examination of the witnesses on the subject might have discovered some additional rule. Be that as it may, the little of the rules and regulations of defendant company that was brought out in evidence does not seem to us to have any very direct bearing upon the subject of protection to employees running on hand-cars. It may be that there are none such, and it may be that special precautions in each instance and on each occasion is thought to be best. We cannot pass any judg'ment on this phase of the question, since the evidence g'ives us no sufficient data.
On the other hand, the rule suggested by appellee as a proper one could under no circumstances possess any virtue, except in cases of persons near enough to the quarry, and the sound of the whistle there, to hear it, and yet far enough away to have more time to get off the track than they would have after the train comes in view and sounds the whistle, as is the rule in vogue, or as was done in the present case.
It is impossible to say how far or near, then, per-' sons must be to hear the whistle in any case, and still more so, wffien they are on a running hand-car, in a rugged and hilly country, where the transmission of sound is obstructed and the sound itself is lost in the more immediate noise of the running car. Sounding the whistle at the quarry, or at any other point, would of course afford no protection to persons out of hearing, and yet so far from their destination as that they will be overtaken. The positive evil of the rule suggested is made apparent, for, having taken the place of a better rule, perhaps, it is nevertheless, of itself, in that case useless. The suggested rule, therefore, would only be applicable to special instances, and its application, if attempted to be extended beyond these special instances, might interfere with the application of more salutary general rules. We are unable to say that the refusal of the company to have the regulation suggested by the appellee was unreasonable. At all events, it was error to submit the question to the jury.
Leaving the subject, then, of the making and publishing of suitable rules, we come now to consider acts of negligence on the part of the company’s employees, which were the proximate or contributory cause of the injury complained of.
It is too well settled to admit of discussion that a servant injured by the negligence of a mere fellow servant has no cause of action against the master. A co-servant may sometimes be guilty of negligence resulting in injury to another servant, while he is in the performance of some duty belonging to the master, and thus make the master liable ; but the rule is unbending that a master is not liable for an injury to one of his servants which has been caused by the negligence of a fellow servant, while the negligent one was acting in the sphere of his employment as such.
This being the rule, universal in its application, it is useless to discuss, in this or any other case, the negligent acts of a mere fellow servant to the deceased. We are principally, if not altogether, concerned in the inquiry as to who, connected in any manner with the accident resulting in the death of Golden, was a vice-principal, if such there was.
The rule, if, indeed, it can be called a rule, by which the relation an employee sustains to the master and to other employees may be determined in any case, is fully discussed by this court in the late case of Bloyd v. Railway Co., ante p. 66, and the authorities therein cited, and we will not attempt a further discussion of the principle, except in so far as it may bear upon its proper application in this case.
It goes without saying that railroading, in almost all of its departments and branches, is such a dangerous business as that, in order for the company to do its duty to its employees, in exercising ordinary care looking to their safety, security and protection, much of the work, by reason of its complications and number of men engaged, requires its control, direction and supervision. The master may perform his duty of supervision in person, or he may delegate it to another, in which latter case, however, he is not relieved of any of its obligations in case of a failure of performance on the part of his vice-principal, or middleman, any more than if the failure was his own, while acting personally in the matter.
The question as to who is a vice-principal or fellow servant, in any given case, is mostly, if not altogether, a matter of fact in the present state of the law; each case standing on its own peculiar state of facts.
The doctrine of risks assumed by one entering into the employment of another, and the non-liability of the master for injuries resulting to an employee from the carelessness and negligence of a fellow servant, is well expressed in the following statement, and we think it is sustained by all the authorities : “ He who engages in the employment of another, for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services. The perils arising from the carelessness and negligence of those who are in the same employment are no exceptions to the rule ; and when a master uses due diligence in the selection of competent and trustworthy servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service.” The foregoing statement embodies the principle enunciated in Little Rock, etc. Ry. Co. v. Duffey, 35 Ark. 602" date_filed="1880-11-15" court="Ark." case_name="Little Rock & Fort Smith Railroad v. Duffey">35 Ark. 602.
We deem it unnecessary, in this connection, to discuss the law applicable to cases of contributory negligence, as that is so well settled as to require no other consideration than that we may give to it in discussing-the instructions in this case.
The first instruction was erroneous, and not only erroneous, but so much so as to be incurable by any other, since, under any state of things, we could never know, but that any verdict the jury might render was affected by its mistaken theory.
The hypothetical part of this instruction is based upon evidence going to show that the foreman of the quarry was a vice-principal, representing the master, in charge of the hands and work at the quarry, as well as in the running of the hand-car to Ravenden, stated by the court, in effect, to be a part of the quarry work. That was a legitimate question to submit to the jury. And if the jury should find facts sufficient to constitute the foreman a vice-principal, representing the company. in his control and supervision of the deceased, then it was legitimate to inquire into the negligence of the foreman, which contributed to the death of deceased, whether that negligence consisted in omissions and lack of precaution, in violation of and neglect to avail himself of the rules and regulations, or in affirmative acts. But the particular act named as the act of negligence in the instruction, namely, the act of putting deceased on the hand-car at the time and under the circumstances, was no act of negligence on the part of the foreman, for that was, in the instruction, conceded to be a part of the work the deceased was employed to do. The instruction was therefore erroneous.
The fourth instruction asked by plaintiff and given by the court is not so materially wrong but that it might have been corrected by the use of apt expression upon which to predicate the idea that in an emergency one’s want of presence of mind and prudence is sometimes excusable.
The fifth of these instructions is not included in the motion for new trial, and the sixth is erroneous because of its indefiniteuess. It is misleading. The objection to the third does not appear to have been insisted on. We deem it unnecessary to consider the instruction asked by defendant and refused by the court, since the judgment of the court below must be reversed for the error pointed out.
Reversed and remanded, with leave to plaintiff to amend his complaint if he so desire.
Dissenting Opinion
dissenting. The complaint in this case alleges “that Geo. C. Golden, in the line of his employment, and under the direction of the agent who was in charge of said rock quarry, was on board of a hand-car proceeding* from said rock quarry over the defendant company’s railroad to Ravenden, a station in Lawrence county, Ark., when said Golden was, by the negligence of defendants and its servants, run over by a freight train running on said defendant comfany's railroad, and, without fault or negligence on his fart, then and there killed.'' Thus it would stand, omitting the formal parts and the three separate assignments setting forth the specific acts of negligence. The company,without in any manner objecting to the complaint, answers, and “denies that said deceased Geo. C. Golden was run over and killed by or through the negligent acts of defendant or its servants;'' then denying specifically the several assignments of negligence as alleged in the complaint.
Witnesses on behalf of appellant testified among other things as follows : Locomotive engineer : — “ That the practice was to sound the whistle when the flag was out for danger; that they always answered with a whistle when the flag was out for danger, and slowed down; that he saw no such signal that day; that, had there been signals out at the quarry, would have slowed up.” And on re-direct examination : “If there was no danger at the quarry, signals would not be put out.”
And the Fireman, on direct examination: “If there had been a signal flag placed out at the quarry, we would have whistled when approaching the quarry; if a flag had been out, it would have been on the right hand side of the track, to attract our attention, a green flag to slow up and a red flag to stop ; if we had seen one, we would have whistled.” On cross-examination : “I saw no signal when we came by the quarry. Signals are not allowed, unless obstructions are on the track. Signals should be placed out if anything is on the track. It would be the duty of the man obstructing the track, or finding it obstructed, to put out signals. It would be the duty of the man who had charge of the quarry to regulate the signals. The signal would be placed fifteen telegraph poles from the point of danger. The telegraph poles are about 175 feet apart. Caution signals are only given to slow up the train.” And on re-direct examination: “It simply slowed down when signal was g-iven. To slow down is to slack the speed so that the train is under the control of the engineer, in case there was rock on the track. It was not required to whistle at the quarry.”
The evident purpose of this testimony was to exculpate appellant from the charge of negligently killing young Golden, an employee at the rock quarry, who, under the direction of the foreman of said quarry hands, was at the time on a hand-car a half mile away from the quarry, but proceeding- to Ravenden on business pertaining- to the quarry. This was the subject-matter of the inquiry. It was the province of appellant to introduce this proof, and it did so without objection on part of appellee. But it was not its province to limit the application of the rules it discloses to the quarry spot, and say, Tinos far they afflied, but not to a half-mile, or any other distance, beyond; nor is it its province to say that a hand-car was not contemplated as an obstmoction, within the purview of these rules. These were questions for the jury, under the instructions of the court. The apppellant should be held to respond to every phase of the issue which this proof in connection with all the other proof in the case raises, namely:
1. If the jury concluded that such. rules as were thus shown applied to hand-cars, as obstructions, and were intended to protect all the quarry men, including those working immediately at the quarry, as well as those passing to and from Ravenden, and on the track in the vicinity of the quarry, and engaged in work pertaining to the quarry, then they were justified in saying that the foreman was negligent in not seeing that proper signals were placed on this occasion, warning passing trains of the danger ahead.
2. Should the jury conclude that these rules were not intended to apply to hand-cars, and the men required to be on them, going to and from Ravenden to make the necessary reports of the work at the quarry, then it would appear that the company had no rules for their protection, and the question would recur as to the negligence of the company in failing to make some reasonable rules for their safety.
To my mind there is no avoiding the responsibility for the negligent death of Golden, it matters not which iihorn of the dilemma ” the appellant takes. If the rules as proven applied to hand-cars, and were intended to afford protection to the men who were required to propel them, then the foreman, whose duty it was to “look after the signals,” should have seen that caution or danger signals were properly placed ; and in failing to take this precaution he was guilty of negligence, for which the company was liable. In coming to this conclusion, I assume, of course, that there was proof to show that he was the company’s vice-principal, and I think there was ample proof to justify the jury in so finding-. He was in charge of thirteen or fourteen men, having entire control over them, hiring and discharging at his pleasure; they were engaged in a dangerous work, getting out riprap, loading same, switching cars, etc. for that purpose, and constantly required to be on and about the company’s track where five or six trains were passing daily. That the duties incumbent upon him to put out signals of danger, etc.., providing for the safety of the men at work, were master’s duties, there can be no question. If the rules, as proven, did not apply for the protection of the men on the hand-car, then the awful sequence of that ride to Ravenden on that day demonstrated the necessity for some such reasonable regulations.
A quarry two and a half miles from telegraphic communication, thirteen or fourteen men at work, any of them subject to be called at any time to propel a hand-car to Ravenden, on a track containing curves and where trains were liable to come along at any time at the rate of twenty-five or thirty miles per hour, demanded, it seems to me, some rules for their protection.
The precautionary steps taken by the foreman on this occasion were entirely insufficient to meet the necessities of the case ; and if he be left without any definite rules, to improvise such measures as each exigency may call for, the company should be held liable where he negligently fails to do his duty. It would seem, from the evidence, that Golden had a right to suppose, when he consented to go upon this perilous journey, that trains would whistle when they passed the quarry, and he would thus be notified of their approach ; for one witness testified that the foreman said that was a rule of the company; and another, that trains generally whistled when they passed the quarry.
The foreman put this young man, of three days experience, on the front of the car, standing with his back to the direction in which it was going, and told him “ to look out,” that the train was liable to come along at any time, and put him where he could see it; yet it appears from the evidence that a train came dashing around a curve at the rate of twenty-five or thirty miles an hour, and was within 500 feet of them before any of them saw it. And so great was the consternation, even of the foreman, with all his experience, at the sudden and unexpected appearance of the fast moving freight, he exclaimed, 1 ‘ My God, boys! There’s the train. Throw on the brakes! ” One of the witnesses testified that appellee either fell off on his back, or jumped off backwards and fell on his back on the track. The jury were justified in concluding that this sudden stopping of the hand-car threw the young man backwards on the track, which was a reasonable and natural explanation of the inextricable attitude in which he was placed. So that the simple caution to “lookout” was not sufficient; and the failure to take some other step, which he should have done under the rules provided, according to'the proof ; or else the failure of the company to make reasonable provision for the safety of these men, was negligence which contributed directly to the death of appellee. The verdict of the jury in my judgment was right, and the complaint should be treated as amended to conform to the proof. In the case of Triplett v. Railway Co. 54 Ark. 289" date_filed="1891-03-07" court="Ark." case_name="Railway Co. v. Triplett">54 Ark. 289, the complaint was as follows : ‘ ‘ That the defendant so carelessly and negligently managed and operated its train and cars that they passed over the body of the deceased, and thereby without the fault of the deceased he was killed.” A comparison of this with the complaint as copied above in this case will show that they are very similar in phraseology, and in legal purport the same.
In the Triplett case, Mr. Justice Fletcher, speaking for the court on a motion for rehearing, said : “At the trial, evidence was introduced without objection to show, on behalf of the plaintiff, that the railway company had failed to afford a proper and safe place for the deceased to work, and had not exercised proper care in affording him protection. * * The company introduced evidence upon the same issue. In fact, the burden of the evidence in the case was upon this issue. * * * The facts thus developed were undisputed, and the court g'ave instructions on both sides as to the law bearing upon the same.” And, citing the case of St. L., I. M. & S. R. Co. v. Harper, 44 Ark. 527, concluded the opinion in the language of the court in that case : “After verdict for the plaintiff the complaint may be considered as amended to conform to this proof.” I think the facts of this record call for the application of the same rule of law. Hanks v. Harris, 29 Ark. 323" date_filed="1874-11-15" court="Ark." case_name="Hanks v. Harris">29 Ark. 323 ; Healy v. Conner, 40 Ark. 352" date_filed="1883-05-15" court="Ark." case_name="Healy v. Conner">40 Ark. 352.
It is obvious that the court has considered the instructions of the trial judge in the light of the complaint before verdict, and finding such of them as it has passed upon erroneous remands the cause with leave to amend the complaint.
I think, viewing the whole charge with reference to the complaint as already amended as above suggested, which the verdict upon the issues raised has already accomplished, there is no reversible error.