249 N.W. 422 | Minn. | 1933
Under date of September 15, 1930, defendant contracted in writing with the Northwestern Bell Telephone Company for the use by the latter of that portion of the rails of defendant's interstate railway system between the stations of Halstad and Eldred, Minnesota, for a "motor car with trailer to be furnished by the telephone company for the transportation of its crews and supplies over" defendant's tracks. For such use of defendant's rails a stipulated per diem was reserved. Defendant contracted to "furnish a conductor-pilot" for the motor car. For his service the telephone company was to pay "as per schedule." The telephone company, its officers, agents and employes were obligated to "observe and obey all rules, *327 regulations and orders of the railroad and its proper officers applicable in exercise of the aforesaid license and permission." Further, it was expressly stipulated that the conductor-pilots of defendant "shall be regarded, for the purpose of this agreement, as employes of the telephone company," which agreed to indemnify the railroad from any and all damages accruing to it or any employes of its own crew for personal injuries or damage to property.
October 7, 1930, plaintiff, a conductor in the employ of defendant, was the pilot serving with the telephone crew. While the motor car and trailer were being moved to get out of the way of an approaching train they collided with a motor truck at a highway crossing, and plaintiff received the serious injuries for which he now seeks recovery.
The motor car was being driven at the time by one Latterall of the telephone crew. According to plaintiff's testimony, he warned Latterall of the approaching danger, but the warning was disregarded and the collision occurred notwithstanding.
1. Much argument has been devoted to the issue whether, at the decisive moment, plaintiff was engaged in interstate transportation (C. E. I. R. Co. v. Industrial Comm.
2. We find no difficulty in holding that if there is any fact issue the jury was justified in deciding that plaintiff remained an employe of defendant. The facts of the case, both in and out of the contract, show that the main duty of the pilot, and in fact the only purpose of his use, was to protect the normal operation of defendant's railroad, both as to interstate and intrastate commerce, from interruption or accident by reason of the presence on the tracks of the telephone company's equipment. The latter had to be kept out of the way of trains, several passenger and freight trains normally passing over the tracks in question each day. Care had to be taken to prevent their collision with the telephone equipment and their delay by the latter's presence. Another purpose was, and it was the duty of the pilot, to see that no obstructions were left on or dangerously near the tracks. In such matters the pilot was not subordinate to or in any way under the control of the telephone company or any of its officers and employes. In that field he was in control of the operation and the equipment used therein. For the proper performance of this independent duty he was responsible to defendant and not to the telephone company. There probably was no actual control exercised over Mr. Wegman, but the right of control of his work as a railroad man remained in defendant; in fact it was his duty as much as though he were running a freight or passenger train to get and to obey (as he did) the orders of train masters, dispatchers, or any other of his superiors in defendant's employ.
It was competent for defendant and the telephone company, in respect to their respective obligations and liabilities one to the other, by contract to characterize the conductor-pilot as a servant of the telephone company. But such a stipulation therein could not alter the facts of operation under the contract, nor so change the status of plaintiff as to deprive him of the protection of either the federal or the state statute, whichever was applicable. To the *329
extent that the contract attempts that (if it does) it is void under either the federal (
3. The next question is whether, if at all, defendant can be charged with the negligence of Latterall, the member of the telephone company's crew whose negligence the jury has found, on sufficient evidence, was the cause of plaintiff's injury. Doubtless Latterall was a servant of the telephone company. But that, under the circumstances, is no bar to charging defendant with his negligence. While the operation was ultimately in the interest of the telephone company, it was nevertheless a railroad operation, one of rail transportation, to the extent that the motor car and trailer were using the tracks of defendant. They were so using them at the time of injury, and their use resulted in the accident. From such a railroad operation and such results a railroad company cannot divorce itself by contract. The law imposes a duty which is nondelegable and an obligation which cannot be so escaped. That has been held in cases of outright and complete lease. N.C. R. Co. v. Zachary,
It may well be that the rule does not impose upon the owner "liabilities arising from contracts, or even the torts," of a lessee or licensee "if they are not made or committed in the discharge of and in connection with the public duty arising from an obligation springing from the chartered privileges or chartered powers" of the owner. C. B. Q. R. Co. v. Weber,
There is argument that plaintiff assumed the risk and that his own negligence, particularly his alleged violation of certain rules of defendant, was the proximate cause of the accident. We cannot so hold as matter of law. The argument goes only to issues of fact, upon which the verdict is decisive.
The judgment appealed from is affirmed.
LORING, Justice, took no part. *331