St. Louis & San Francisco Railroad v. Morris
93 P. 153
Kan.
1907
Check Treatment

The opinion of the court was delivered by

Benson, J.:

The first error specified by the defendant company is in refusing the instruction requested •and previously quoted. The instruction, if given, would have limitéd the province of the jury in determining the question of negligence to a situation where the company would be bound to anticipate just such an accident, оccurring in the precise manner that this occurred. This rule, if adopted, would unduly restrict the functions of a jury. It may be conceded that the -defeсt, in order to be the basis of an action, should be such that injuries therefrom might reasonably be anticipated; yet it is not necessary that the particular circumstances attending such injuries should be an*844ticipated. The unusual nature of the accident and the attending circumstances are factors to be considered by the jury in determining the master’s exercise of due care. (1 Lab. Mast. & Ser. § 145.) The instructions given were clear and comprehensive, and fairly presented the issues to the jury ‍​​‌‌​​​​​​‌​​‌​​‌‌​‌​‌​​‌‌‌‌‌​​‌‌​​​​‌‌‌‌‌​‌‌‌‌​‍in the light of all the evidence, and no error is presented in the refusal to charge further, as requested.

It is urged that judgment for the defendant should have been rendered upon the findings. It is argued that the first five findings, taken in connection with the admissions of the plaintiff in his testimony, would support such a judgment. It is stated that the plaintiff ran in front of the car without looking to see whether there was a brake or handhold upon it or not, and that he negligently went so close to the car that he could not get away without injury, or that he negligently failed to attemрt to get away. A careful reading of the evidence in connection with the findings leads to the conclusion, however, that the findings have their warrant and support in the evidence, although the evidence is conflicting.

The principal reliance of the defendant in asking for a reversal seems to be the alleged error of the court in refusing a new trial. It is claimed that the plaintiff failed to show any negligence of the comрany, and, upon all the evidence, that contributory negligence on his part was shown. Attention is called to the fact that the absence of a handhold does not prove negligence, because there was no evidence as to the time when it had been removed, and the rule announced in Railway Co. v. Dorr, 73 Kan. 486, 85 Pac. 533, that unless the defects were of such a nature, or had existed for so íong a time that they should have been discovered and rеmedied, applies. In this case, however, if the theory of ‍​​‌‌​​​​​​‌​​‌​​‌‌​‌​‌​​‌‌‌‌‌​​‌‌​​​​‌‌‌‌‌​‌‌‌‌​‍the plaintiff was sustained by the evidence, the employee was suddenly called tо a place of danger by the order of his superior. In such, a situation the master is presumed to know *845whether the place or instrumentality is reasonably safe, and the servant may rely upon that assumption, unless the. danger is so obvious that a prudent man in the same circumstances would not еncounter it, even with the assurance that such presumption affords. The servant acting in good faith upon an order of his superior may rely upon the instrumentalities being in their usual condition and fit for use, where he does not have knowledge and is not chargeable with notice to the contrаry. In such a situation he may rightly rely upon the assumption that his employer has done his duty by furnishing reasonably safe machinery, appliances and surroundings. (4 Thomp. Com. Law of Neg. § 3765; Mo. Pac. Rly. Co. v. Barber, 44 Kan. 612, 24 Pac. 969.) The ‘order is considered to be an implied assurance that there is no abnormal danger. (1 Lab. Mast. & Ser. § 440c.)

Whether the plaintiff was negligent in the performance of the duty assigned to him must be determined in the light of the situation in which he was placed. ‍​​‌‌​​​​​​‌​​‌​​‌‌​‌​‌​​‌‌‌‌‌​​‌‌​​​​‌‌‌‌‌​‌‌‌‌​‍If his act was such as a reasonаbly prudent man would have done, it was not negligent, although some other course would have been absolutely safe. (Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586.) It must be remembered that this was а sudden call to a dangerous service, which had to be performed then or not at all. Plaintiff was bound to use the discretion and judgment that a prudеnt man would in that situation. If it was a palpably reckless or foolhardy risk, he cannot be excused. If it was such as a prudent man would have perfоrmed, he might undertake it, although hazardous. The same rule applies to the manner in which the service was performed; called to the serviсe, he was bound to use such means as reasonable prudence dictated in the emergency in which he was placed. Whether he ought to have undertaken the work, and whether he made use of reasonable means in performing it, were questions properly submitted to the jury.

*846In volume 1 of Labatt on Master and Servant, in section 358, it is said:

“In other cases the essence of the situation to be considered is that the servant was cоnfronted by a serious danger; that he had. not sufficient time to deliberate upon the comparative safety to the alternative coursеs of action open to him for the purpose of avoiding injury; and that the alarm or nervous excitement produced by the conjuncture impaired his reasoning faculties to such a degree that it was unjust ‍​​‌‌​​​​​​‌​​‌​​‌‌​‌​‌​​‌‌‌‌‌​​‌‌​​​​‌‌‌‌‌​‌‌‌‌​‍to' gage the quality of his conduct by the ordinary standards. It is well settled that a servant who is suddenly exposed to great and imminent danger is not expected to act with that degree of 'prudence which would otherwise be obligatory. Or, as the doctrine is also expressed, a servant is not necessarily chargeable with negligence because he failed to select the best means of escape in an emergency.”

Where a conductor ordered a brakeman to cut off cars from a moving train it was hеld that, even if he was not directed to go in between the cars, he might nevertheless do so, if such a mode appeared to him, in the exerсise of ordinary care, to be necessary. (Hannah v. Connecticut River Railroad, 154 Mass. 529, 28 N. E. 682.) The same rule was applied when on a dark, stormy night a brakeman, who was required to act рromptly, complied with an order to use a defective link. (Denver, T. & G. R. Co. v. Simpson, 16 Colo. 55, 26 Pac. 339, 25 Am. St. Rep. 242.) In Wurtenberger v. Railway Co., 68 Kan. 642, 75 Pac. 1049, it was held:

“Where a master orders a servant into a situation of danger, and, in obeying the cоmmand, he is injured, the law will not charge him with contributory negligence or with an ‍​​‌‌​​​​​​‌​​‌​​‌‌​‌​‌​​‌‌‌‌‌​​‌‌​​​​‌‌‌‌‌​‌‌‌‌​‍assumption of the risk, unless the danger was so glaring that no prudent man would have еncountered it, even under orders from one having authority over him.” (Syllabus.)

In Railroad Co. v. Langley, 70 Kan. 453, 78 Pac. 858, it was said:

“Again, where one, by the negligent act of another, *847is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to the better course to pursue, he is not held to the strict accountability that is required of one situatеd in more favorable circumstances. Contributory negligence is not necessarily chargeable to one who fails to exercise the grеatest prudence, or best judgment, in a case where he. is required to act suddenly or in an emergency.” (Page 461.)

The following cases are illustrаtive of the duties of á railroad company and its employees in similar cases: Settle v. St. L. & S. F. R’y Co., 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633; Fox v. C., St. P. & K. C. R’y Co., 86 Iowa, 368, 53 N. W. 259, 17 L. R. A. 289; Mason v. Railroad Co., 111 N. C. 482, 16 S. E. 698, 18 L. R. A. 845, 32 Am. St. Rep. 814; Coates v. Boston & Maine Railroad, 153 Mass. 297, 26 N. E. 864, 10 L. R. A. 769.

The company by its rule required the plaintiff to unite with other emрloyees to protect its property. He was suddenly called to that duty by his superior. He was not only'bound to use ordinary care but he was also bound to make all reasonable effort to save his employer’s property. He was required to be loyal as well as to be careful. The facts were fairly submitted to a jury, and, finding no error in the proceedings, the judgment is affirmed.