33 Minn. 311 | Minn. | 1885
Lead Opinion
It is admitted that the defendants jointly owned, maintained, and occupied a yard in common at Albert Lea, where trains were made up to be sent over their respective lines. The respondent had charge of the making up of night trains in the yard, and was injured in the course of his employment, while coupling cars, at about 3 o’clock in the morning of November 24, 18S2. A freight train had previously arrived from Minneapolis over the Minneapolis & St. Louis road, including, with others, a box car loaded with flour at that place and bound east. On its arrival it became plaintiff’s duty, according to the usual course of business, to obtain a list of the cars and their destination, so that he might proceed to make the necessary transfers in making up the outgoing trains. It was the duty of the ear inspectors, two of whom were employed for night service, to inspect all ears in trains on their arrival. The plaintiff had been in the employ of defendants a little more than two weeks, and must have been familiar with the manner in which the business was carried on in the yard. On the night in question, about half an hour after the arrival of the train mentioned, the plaintiff, who had been switching and distributing cars, brought an unloaded flat ear from the wood track to the main track, upon which the box car we have referred to still stood, and undertook to couple them. His evidence tends to show that as he went to make the coupling, and while the ears wore coming together in the usual way, the draw-bar of the flat car struck and overrode the draw-bar of the box car, which appeared to be loose and insecurely supported, and dropped down when struck by the approaching car, thus permitting the two cars to come together and in
1. While it may be conceded, for the purposes of this case, that from the circumstances and nature of plaintiff’s employment, in which -cars from many roads were brought together with coupling attachments of different heights and patterns, he would assume the ordinary risks of the service from such causes, we think, upon the evidence, the question was fairly for the jury whether the accident oc-■ciirred from such causes, or from the fact that the draw-bar of the box car was insecurely supported and in an unsafe condition, from neglect to repair the same. Upon this issue the evidence in plaintiff’s behalf, among other things, also tended to show that the strap or ■carrying-iron which supported the draw-bar was worn, weak, and loose, and that some of the bolts which were intended to keep this iron strap in place were loose or broken, that it had been out of repair for a considerable time, and the defects were such as could readily be discovered by proper inspection.
2. The evidence of the defective condition of the car, which appears to have been previously in the possession of one of the defendants, the Minneapolis & St. Louis Company, at Minneapolis and during its transit to Albert Lea, a distance of 108 miles, was received and submitted to the jury without any objection or suggestion that the liability did not attach equally to both defendants for any negligence in respect to this car prior to its arrival at Albert Lea. This point is how suggested for the first time; but we think, under the circum■stances, the attention of the court should have been called to this matter when the evidence was received, or when the jury were instructed. As the case stands, since we think there was evidence for the jury tending to show a joint liability for negligence in the yard at Albert Lea, it is too late to raise the question in this court as’to the competency or sufficiency of the evidence of previous negligence to charge the defendants.
3. Evidence was received, under the defendants’ exception, showing a regulation of defendants in relation to the inspection of cars, un der which it became the duty of the car inspectors, if any were found
The position taken by defendants’ counsel at the trial appears to have been that the plaintiff did not give the inspectors the necessary time to complete their work; and the case was submitted to the jury under instructions, given at defendants’ request, that “if he did not do so,” or “if he did not know or have reason to believe that all the-cars in said train were inspected before he caused them to be moved, he cannot recover.” This question was determined by the jury in plaintiff’s favor upon the evidence.
As before remarked, it was the duty of the inspectors to examine cars immediately upon their arrival, and the evidence tends to prove that it was their practice to so inspect them upon the track before-their removal. The inspection of this train was, in fact, so made on the night in question. There is some conflict in the testimony as to-the length of time it would take to properly inspect such a train of cars, and it does not clearly appear how much time had elapsed before the injury; the plaintiff’s recollection being that it was from 25-to 40 minutes. But it appears that the inspectors had, in fact, completed their work before the accident. The negligence of the inspectors was therefore proper to be considered upon the question of the¡
In Fuller v. Jewett, supra, it is said by the court, (p. 53 :) “The duty of maintaining machinery in repair for the protection and safety of employes is the same in kind as the duty of furnishing a safe and proper machine in the first instance;” and “in respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury.” This corresponds to the language of the same court (Church, C. J.) in Flike v. Boston d A. R. Co., 53 N. Y. 549, 553, and (Folger, C. J.) in Slater v. Jewett, 85 N. Y. 61, 70. Substantially the same doctrine is adopted by this court in Drymala v. Thompson, 26 Minn. 40, and we think that case must control the disposition of the question under consideration. In some states the courts hold that this rule is not applicable to subordinate employes, as in the case of ordinary car inspectors at the transfer yards, but that the latter are to be deemed fellow-servants of other employes injured through their negligence. Railroad Cos. v. Webb, 12 Ohio St.
It is difficult to lay down a general rule which will be applicable in practice, and define accurately the limits of the master’s liability in this class of cases. But if the special duty and responsibility belong to the car inspector to examine and determine whether a car is unfit for service, and shall be so marked and sent to the repair track or shop, it is difficult to discover any distinction in kind between his duty and that of the mechanics who make the repairs. It will also be borne in mind that the measure of liability on the part of the company is reasonable care, which must be determined by the circumstances in each case. Experience in the competent and practical management of railroads will naturally determine the nature and frequency of inspections which ordinary care would require should be made between the intervals of the more minute examinations at the general repair-shops. But the general examinations which experience has shown practicable and necessary to be made of cars at the yards designated for such purpose, without causing undue delay while in the course of transportation, would at least include such patent defects as would be readily discoverable upon inspection by a competent person in the exercise of reasonable care. Richardson v. Great Eastern Ry. Co., supra.
In respect to patent defects in. the coupling apparatus, brakes,
As before stated, this case does not, we think, differ in principle from Drymala v. Thompson, supra. There the negligence of the section foreman engaged in repairing the track, who would have otherwise been deemed a fellow-servant with the injured party, was held to be that of the defendants, and it would have constituted no defence that the company had employed competent men, adopted proper regulations, or provided suitable materials, and an adequate system for supervising and repairing its track. On the other hand, in Brown v.
The application of the rule, as well as the question of the degree of risk assumed by employes, will, of course, be largely influenced by the special circumstances of any particular case. And so, as to different kinds of business, the amount of care required, and the system to be adopted and carried out, are to be determined by the circumstances of each case, depending upon the nature of employment, the extent, hazard, and usages of the business, the kind of machinery used, and the risks incident thereto. Kain v. Smith, 25 Hun, 146.
4. A witness acquainted with plaintiff’s physical condition, though not a physician, was permitted to testify, against the objection of the defendants, to the state of plaintiff’s health before and after the accident, and, among other things, that he had since had a skin disease. As he merely stated facts within his observation, and expressed no opinion, the evidence was competent.
5. The application for a new trial on the ground of misconduct of the jury was made upon affidavits which are met by counter-affidavits, and was thus determined upon conflicting evidence. It also appears that some of the affidavits on plaintiff’s part are not returned to this court. We see no reason, therefore, for questioning the correctness of the decision of the trial court on this point. Peterson v. Faust, 30 Minn. 22. So, also, as respects the damages, which are claimed to be excessive; the question was within the province of the jury to determine; and considering the nature of the injury, the age of the plaintiff, extent of his disability and suffering, we are unable to say that the trial court erred in refusing to set aside the verdict for such cause.
Order affirmed.
Dissenting Opinion
dissenting. As I understand the facts of this cas6, the duty of these “car inspectors” was simply to make a general cursory examination of cars en route, upon their arrival at the yard, so as
There is much difference of opinion as to whether the doctrine of “common employment” works equitably, as applied to the large business enterprises of the present day, with their numerous departments and different grades of service. But the doctrine has become too thoroughly imbedded in the jurisprudence of England and this country to be disturbed by the courts. If it is to be changed, it must be by the legislature. It seems to me that the doctrine laid down in the opinion of the court in this case, if carried to its logical consequences, goes a long way towards breaking down this well-established rule, which exempts the master from responsibility for injuries to his servants caused by the negligence of their fellow-servants. This doctrine has been so much and so often considered in the books that it would be useless to enter upon any general discussion of it at this time. But it seems to me that confusion has sometimes arisen from a misapprehension or misapplication of certain maxims or rules bearing upon this subject.
It is often remarked that as corporations can only act through natural persons, who are all in a sense servants of the corporation, to hold general agents or superintendents, to whom is intrusted the management and control of its business, to be fellow-servants with all subordinate employes, would be to relieve the corporation of all liability for negligence. It seems sometimes to be inferred from this that a different rule as to such liability is to be applied to corporations from that applied to natural persons. I do not so understand it. In every business there must be some natural person to whom its management and control is intrusted, and who is therefore, if not the master in person, the representative of the master, and for whose acts
Again, a familiar rule is that the master is bound to use ordinary care in furnishing suitable and safe instrumentalities for the use of his servants. Included in this is that of maintaining them in a safe condition. Repairing is, in a sense, famishing. And, as necessarily incident to the duty of “maintaining,” is the duty of providing an adequate system of inspecting, examining, and guarding these instru-mentalities. It is also the rule that this duty of furnishing and maintaining safe instrumentalities is a primary duty of which the master cannot relieve himself by clothing some general agent with the power, and charging him with the duty, of making performance for him, but that the failure of such agent will be the failure of the master. This rule has been sometimes understood as meaning that the master is responsible to his servants for the negligence of every employe, however subordinate his station, who is engaged in performing the most common executive duties in the matters of repairing, examining, or watching the instrumentalities intended for the use of other servants. I think this is a misapprehension of the rule, which has sometimes arisen from losing sight of the distinction between one who is clothed with the powers of the master in the control and supervision of some department of the business, and who is pro hac vice the representative or alter ego of the master, and one who simply performs what maybe termed mere executive details.
Of course, in the -multitude of cases on this subject with which the reports abound, often conflicting, and frequently not well considered, some authority can be found for almost any proposition. But I have not found any case well considered, either upon principle or upon an
But the distinction which I have alluded to is distinctly brought out in the subsequent case of Holden v. Fitchburg R. Co., 329 Mass. 268, in which the reasons and limits of the rule and the authorities on the subject are ably discussed by Gray, 0. J., and 'in which it is, in effect, held that a track repairer and a brakeman are fellow-servants. Almost as a corollary from this last decision followed that of Mackin v. Boston & A. R. Co., 135 Mass. 201, which holds that a car inspector and a brakeman employed on the same car are fellow-servants, — a case entirely analogous to the present one. I have not overlooked the fact that that was a foreign car in transit over the company’s road. I also notice the caveat in regard to that which the court put into their opinion. But, whatever state of facts they might have had in mind in doing so, it could not have been anything affecting the principle involved in the present case; for it seems to me that this duty of casual inspection of cars while in transit must be the same, whether the car is a foreign one or a domestic one.
In New York the decisions are so often conflicting that the value of any particular one largely depends upon the composition of the court at the time, or the ability of the judge who wrote the opinion. The primary character of the duty of the master to furnish safe in-strumentalities is clearly and ably defined by Folger, J., in Laning v. N. Y. C. R. Co., 49 N. Y. 521, 532. But the limits to the rule, and
This court has itself recognized the same distinction. In Brown v. Minn. & St. L. R. Co., 31 Minn. 553, we held that a station agent who had general charge of the tracks in and about his station, and whose duty it was to keep them clear and in safe condition for passing trains, was a fellow-servant with an engineer on such a train. In Roberts v. Chic., etc., Ry. Co., ante, p. 218, decided at the present term, we held that a switch-tender and a baggage-master were fellow-servants. Drymala v. Thompson, 26 Minn. 40, is not in conflict with this distinction. That case was decided upon the ground that the “section foreman,” to whom was intrusted the duty of repairing or “furnishing” the track, was the representative of the master; and this was at the time, and is yet, generally considered what might be termed a “border case.”
The management of an extensive business, like that of operating a railroad, includes so many departments and so many grades of service that it may not always be an easy matter to draw the line between those who are to be deemed “vice-principals,” or representatives of the master, and those who are to be deemed “fellow-servants,” as to other employes; but the fact of such, a distinction is everywhere recognized. To hold that the master is responsible to his servants for the negligence of every employe of the most subordinate rank who is engaged in the department of repairing, examining,, watching, or guarding the instrumentalities used by other employes, would virtually abrogate the whole doctrine of “common employment. ” There is hardly an employe in the service of any railroad