San Pedro, L. A. & S. L. R. v. Brown
258 F. 806
9th Cir.
1919
Check Treatment
HUNT, Judge

(after stating the facts as above). [1-3] It is evident that the inspection was being made for defective brake equipment rather than an air test, and, considering the evidence of the practice followed by the inspectors at Yermo, we cannot say that, as a matter of law, it was incumbent upon the inspector who was working under the train to malee sure that the other inspector actually placed the signal.

Certainly it is the right of an employer carrier to issue rules for the safety, guidance, and protection of its employes, and it is the duty of the employés to observe such rules. But, if there is evidence of a custom with respect to the interpretation of a rule which does not clearly cover the particular situation which confronts the employé, the employé is not always negligent in following the custom, and if in the observance of the usual practice he is injured through the negligence of his fellow employé, under the statute cited he may have a cause of action for injuries received. But, if we assume that Brown was negligent in not personally seeing that the flag was placed, surely his negligence was not the sole cause of the accident, for notwithstanding Brown’s negligence, if Abies, his fellow inspector, had not negligently failed to place the flag, the accident would not have happened.

[4, 5] It is urged that no duty rested upon the railroad company to place a blue flag on any part of the train under which Brown was working, but that the duty to place such a flag was enjoined upon Brown, the inspector, that he could not delegate or confide the performance of such duty to Abies, and that, if failure to place the flag was the proximate cause of the injury, Brown could not recover.

In this connection we have carefully considered the argument of plaintiff in error that it could not have been the intent of Congress, as expressed in the act, to permit of recovery where an injury to an employé has resulted in any way from the negligence of a fellow servant. That may be so, and Reeve v. Northern Pacific Railway, 82 Wash. 268, 144 Pac. 63, L. R. A. 1915C, 37, sustains the argument. But that argument does not answer the question in the present case. The injury sued upon in the Reeve Case was received by the employét who was a laborer about cars, by being pushed out of the car by another employé, who was scuffling with a third fellow employé, and brushed against the man who was thrown out. It was held that the injury was not caused by the negligence of a fellow employé, committed while he was prosecuting the business of the employer. Here, however, Brown *809was giving his undivided attention to his duty, the adjustment of a brake on a car, in order to put the brake in proper condition for the journey about to begin, and Abies had the flag and was also engaged in the business of the employer.

It is not open to argument that under the act cited the old defense of the. fellow servant rule is gone, and we find no reasonable ground upon which to rest a conclusion that an interstate railroad employer can, by a rule made for the safety of the employes, destroy a cause of action in favor of an employé for injury received while performing a duty and directly caused by the negligence of a fellow employé.

The express declaration of the statute (section 5) that “any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability” created by the act, shall, to that extent, be void, gives aid in the proper interpretation of the act and is inconsistent with the theory advanced by plaintiff in error that Brown made Abies his agent to place the flag and that Abies’ negligence is to be imputed to Brown, although Abies was a fellow car inspector. The two were fellow servants, and the act of the one in relying upon the other did not make a relationship of principal and agent whereby the employer can be absolved.

Considering the context of the statute, it is unimportant whether the negligence of the fellow servant, Abies, is called the negligence of the master or is called imputed negligence, for the liability of the carrier arises to any person suffering injury resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, and no “contract” or “rule” made for the purpose of attempting to establish a relationship between the employé and the carrier, to enable the carrier to exempt itself from the liability created by the act, can be sustained as effective in relieving the carrier.

[ 6] It is also argued that Brown must be held to have assumed the risk of the injury he sustained as a result of his reliance on his co-employé and the failure of his coemployé to place the flag and so protect him. The point is based upon a portion of the charge of the lower court to the effect that Brown did not assume the risks that were attendant upon the negligence of a fellow servant.

Clearly, under the act, the defense of assumption of risk is open to the carrier, except in actions brought under section 4, which provides that, in an action for damages for injury to an employé, “such employé shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.” Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. But Brown Was not injured by reason of any defect in the machinery, or by reason of any clanger normally or necessarily incident to the occupation of inspecting cars. The accident would not have happened at all, but for the negligence of a fellow servant; and as to employers, while engaged in interstate commerce, the servant so engaged does not agree, as between himself and the carrier, to assume the risk of the neg*810ligence of his fellow servant. Watson v. St. Louis R. Co. (C. C.) 169 Fed. 950. In Boldt v. Penn. Ry., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385, the court affirmed the action of the trial court in refusing to charge that “the risk the employé now assumes, since the passage of the federal Employers’ Liability Act, is the ordinary dangers incident to his employment, which does not now include the assumption of risk incident to the negligence of defendant’s officers, agents, or em-ployés.” The opinion expressed was that the requested charge was erroneous, because the action there brought was not one within the provisions of section 4 of the act. But as far as we are advised it has never been held that in an action brought under the statute, where an employé trusts to another to do an act necessary for his safety, and he himself is not aware of the failure of such employé to do the act, and actually goes on with his work, relying upon the performance of the act by his fellow servant, and by reason of the negligence of the em-ployé relied upon injury follows, the risk of such negligence on the part of the fellow seryant is assumed by the injured man.

In Illinois Central Railroad Co. v. Skaggs, 240 U. S. 66, 36 Sup. Ct. 249, 60 L. Ed. 528, upon a writ of error to review a judgment re-, covered under the federal Employers’ Liability Act, it was argued that the railroad company could not be negligent to an employé whose failure of duty and neglect produced the dangerous condition. The court took it for granted that under the statute recovery by an employé for the consequences of actions exclusively his own could not be ljad. In qualifying the assumption, the court said in effect that where the injury-to the employé does not result in whole or in part from the negligence of any of the agents or employés of the employing carrier, or by reason of any defect or insufficiency, due to its negligence, in its property or equipment, action would not lie. “But,” continued the court, “on the other hand, it cannot be said that there can be no recovery simply because the injured employé participated in the act which caused the injury. The inquiry must be whether there is neglect on the part of the employing carrier, and, if the injury to one em-ployé resulted in whole or in part from the negligence of any of its other employés, it is liable under the express terms of the act; that is, the statute abolished the fellow-servant rule. If the injury was due to the neglect of a coemploye in the performance of his duty, that neglect must be attributed to the employer; and, if the injured employé was himself guilty of negligence contributing to the injury, the statute expressly provides that it shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé.” This decision we believe to be applicable to the facts in the case before us. Brown, pursuing the usual practice at Yermo, may have participated in the act of failing to put up the flag; but Abies’ failure was, in large part, the direct cause of the damage. Brown relied upon Abies, and in reliance upon him went on to perform his duty. Bf the express terms of the statute the negligence of Abies may be attributed to the carrier.

. We find no error in the record, and affirm the judgment.

Affirmed. •