44 P. 302 | Ariz. | 1896
Lead Opinion
(after stating the facts).—We decline to pass upon the question of the negligence of Barrett, the conductor. The evidence is conflicting in that particular. Besides, that question is not decisive of the case.
The following instruction was given to the jury for plaintiff: “The court instructs the jury that the conductor of a railway train, who commands its movements, directs when
(1) A person entering the service of a corporation assumes all the risk naturally incident to his employment, including the danger which may arise from the negligence of a fellow-servant ;
(2) That the master’s liability does.not depend upon gradations in the employment, unless the superiority of the person causing the injury was such as to make him principal or vice-principal;
(3) The liability of the master does not depend upon the fact that the servant injured may be doing work not identical with that of the wrong-doer. The test is, the servant must be employed in different departments which in themselves are so distinct and separate as to preclude the probability of contact and of danger of injury by the negligent performance of the duties of the servant in the other department.
In this jurisdiction we are governed by the decisions of the United States supreme court, and this case is to be deter
I have quoted extensively from these cases, because their reasoning applies with great force to the facts in hand. But the truth is, every case depends upon its own circumstances.
It is quite certain that the court, in its former decision in the case (4 Ariz. 116, 33 Pac. 821) erred in applying the Ross case (Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184) to the facts in this record. In the Ross case the engineer of a
The giving of the instructions quoted was reversible error, since, upon the facts, the conductor of the work-train and the plaintiff were fellow-servants. The judgment is reversed and a new trial is ordered.
Hawkins, J., concurs.
Concurrence Opinion
(specially concurring).—I concur in the reversal of the judgment of the lower court on the grounds stated in the foregoing opinion, but desire to add that, in addition to the grounds for reversal therein set out, it clearly appears from the record that defendant attempted to prove
Bouse, J., concurs in the above.