158 N.W. 901 | S.D. | 1916
Lead Opinion
This action was brought for the recovery of damages for personal injuries alleged to have 'been caused by the negligence of defendant. It is alleged in the c-cmplaint, that at and for some time prior to the injury, defendant, a corporation, was engaged, as an independent contractor, in installing a system of electric signals along the right of way of the Chicago', Milwaukee & St. Paul Railroad between Milbank and Aberdeen. Plaintiff was employed as a laborer in the performance of said work. The defendant maintained, -a hoarding camp for the purpose ■ of 'boarding the men so engaged, and also maintained a (small gasoline-propelled car for the purpose of conveying said employes to and from their work. This car was in charge of
Defendant denied all .the material parts of the complaint, except its corporate existence and the employment of plaintiff, and, by way of affirmative defense, alleged that plaintiff’s injuries resulted solely from bis own carelessness and negligence in his manner of riding on the said car. At the close of plaintiff’s evidence, defendant moved for a directed verdict upon the grounds: First, that the evidence did not show any negligence on the part of the said Frizell in the operation or management of the said car; second, that the evidence did not show any negli
Just what constitutes the relationship of carrier and passenger has been a subject o-f much discussion by the courts in recent years, and the conclusion reached are not entirely harmonious. It sem-s to be genei'all-y agreed, however, that, when an employee is being carried in his employer’s vehicle in connection with, or in consequence of, his employment, he i-s not a passenger, but a fellow servant of those •operating' said vehicle. On the other band, -if a person is traveling as a mere matter of convenience to himself, although he is being carried free by bis employer, he .is to be considered a passenger. 4 R. C. L,. § 476, •and cases cited. Respondent contends that when the accident occurred appellant was receiving pay for his time, and -respondent was entitled to bis services. This contention is based upon the fact that the accident occurred at about 11.30 a| m. But this is not the test. No part of the service far -which appellant was receiving -pay was to be performed while he was on the car. He was not expected or required to- take any part whatever in the operation of -the qar, and, -while on said car, could perform-, no ■part of the service for which he was employed-. His work was at various points 'along the railroad right of way, and no. place else. He could not commence work in the morning until he arrived at the-place where his work was to ibe performed. Neither was he required to perform any more work after he was directed to board
It may be true, as claimed by respondent, that the -said Prized worked with the other employes while engaged in the installation -of the said -electrical signals; that he did the same kind, and an -equal .amount, of work .as the -other workmen, and it may be th-al that fact would -constitute the relationship of fello-w servants so long as they were thus engaged-; but, when they -ceased such labo-i and hoarded said car, a new situation arose. Appellant and Erizell -ceased to be co-laborers or coemployees, and Prized took the place of his principal. Appellant was th-en being conveyed tc camp by respondent pursuant -to- a duty that respondent -owed him and i-n the performance of which Prized was occupying the po--sifuon- of the defendant and- was no longer a fellow servant oí appellant. Under this theory of the case, was there sufficient evidence to warrant the jury in finding for appellant? He testified that, just prior to the accident, the -car was- running at a rate of 20 or m-o-re miles per hour; that he was riding on the front end of the car and looking forward; that, while the car was sc mo-ving and without any warning of what was about to take place, Prized -cut off the power and1 applied the brakes;. that this brought the car to an abrupt stop; and that it was this action of the car that threw him off and caused his injury. The evidence standing alone, if believed 'by the- jury, wou-l-d warrant a verdict for appellant; and, while the witnesses on. -behalf of respondent
The judgment appealed from is reversed, and a new trial is-awarded.
Dissenting Opinion
(dissenting). I cannot agree that the parties hereto occupied the -relation of passenger and carrier at -the time of the accident. If the premise from which my colleague has started were correct, his conclusion would- be sustained by a part of the decisions cited. Some of the -decisions ’have no possible
“Defendant was under obligation- to furnish this transportation, though appellant was under no obligation to avail himself ■of the opportunity to ride. He could have walked to camp, cine could have carried a lunch out with him in the -morning and not have gone t-o camp -at that time -at all. The transportation was furnished .as a matter of convenience to him an-d, by the terms of the contract of employment, was a part of the compensation for his labor.”
I -believe that, under the contract -entered into, when construed in- the light of the work to 'be done- thereunder, appellant w-as under obligation to -avail himself of -the opportunity to- ride. Under the contract, it was his duty to ride on this car to and from work, morning and -evening, and-to and from the place for meals at the noon hour. The transportation was not “furnished as a matter of convenience to” appellant, but as a necessary and ■essential element in the carrying -out of the enterprise in which appellant and his fellow workmen were engaged. The work was to -be done all along the line of railway from Mil-bank to- Aberdeen; -filie respondent w-as to furnish -board and lodging for the men, and was to take them- back and- forth to and from work. At the time of the accident, their headquarters -were- at Webster, -and they were working near Andover, th-e second station west of Webster. Appellant could not, from- -the very nature of the cir-■cu-mstanees, -have -lodged and boarded- where he -desired. It wias; absolutely necessary for him, in properly fulfilling his -contract and as a part thereof, to make use of the transportation offered. There is not a -case cited by appellant where it is held that -the relation of passenger and carrier -exists und-er such -circumstances; hut' wherever a contract, such as the one before us, has been before the oo-urt, -it -has always been- held that -the relation of master •and servant -existed during- the period of transportation. The -distinction between where it is th-e d-uty of the injured party to ride, and where it is his privilege to do so, is clearly noted in the following -cases, some of which are among the cases cited by
“It was part of * * * (his) contract of service that he was to-return -each -day to Birmingham by the pick-u-p train, to be reair to start uipon his -work the next morning’.”
And in tire Dickins-o-n Case the -court held the plaintiff to be a passenger, -and -not a servant, because:
“It was no part of his -duty '* * * as a servant to take the car on which he was riding and go to the particular place for his -dinner.”
I must confess my inability to reconcile the two different posit-ons taken in the -majority opinion. Eirst it is held that, in the -matter of transportation — that out of which the accident resulted — the relation of master and servant did not exist. Then it is held that there is a liability because “appellant and Frizell c-eased to be -co-laborers -or coemp-loyees, and Frizell took the place of his principal.” The rule holding -the master liable for injuries-to his servant through th-e act of his vice principal can hav-e no-application where the relation between the principal and the party injured is -other than that of -master and servant; there cant be no vice principal where there is no servant.
Concurrence Opinion
I concur in the result reached, by Justice POLLEY. I am of the view- that this is not one of the ordinary hand-car cases where the employee, as a part of the -labor he is hired to-per form-, assists in. running- the hand car to and from certain locations, such as is the case where section-men going from place to-place, within the scope of their employment, run or assist in ■running the -car for- the purposes- -of facilitating- the performance of the labor which they, as employees, are-hired to perform. In such cases- the hand car is a mechanical implement, appliance, or tool used by the employees in the performance of their duties; and, under such circumstances, the employee riding- ’ upon the hand car, when an injury occurs, is -deemed a servant, within the fellow-servant rule. But where the -hand car is not being so used, and was being used for some other .purpose outside of the scope of the employment, the employee, riding on, such car for purposes outside of and disconnected from the performance of the special labor constituting his employment, when injury occurs, will be deemed a passenger, and the rules of law governing the duties towards passengers are applicable. In this case plaintiff was employed to- clean out battery wells. Defendant, at the time of the accident, was transporting plaintiff, not as a part of his employment of cleaning out battery wells, but was transporting him to and from a boarding- house operated by defendant. Under these circumstances", I am of -the view that plaintiff, under the principle maintained in the -cases- cited ¡by Justice POLEEY, was a passenger at the time of the accident in question.