Chicago &Amp; Northwestern Railway Co. v. Bayfield

• Decision Date: 02 October 1877
• Court: Michigan Supreme Court
• Parties: Chicago & Northwestern Railway Co. v. Isabella Bayfield, Administratrix of David Williams

37 Mich. 205

Chicago & Northwestern Railway Co. v. Isabella Bayfield, Administratrix of David Williams

Supreme Court of Michigan

October 2, 1877

Argued June 15, 1877

Error to Marquette. (Williams, J.)

Case for damages under Comp. L. 1871, § 2351, for the negligent killing of the plaintiff's intestate and next of kin. Defendant brings error. Reversed.

Judgment reversed, with costs and a new trial ordered.

Ball & Owen for plaintiff in error. The superintendent of a construction train who hires the employees engaged on it, is their co-employee. Wright v. N. Y. Cent. R. R. Co. 25 N.Y 565; Gillshannon v. Stony Brook R. R. Co. 10 Cush. 228; Warner v. Erie Ry. Co. 39 N.Y. 479; Laning v. N. Y. Cent. R R. Co. 49 N.Y. 528; Sherman v. R. & S. R. R. Co. 17 N.Y. 156; Mich. Cent. R. R. Co. v. Dolan 32 Mich. 510; Hofnagle v. N. Y. C. & H. R. R. R. Co. 55 N.Y. 608; St. Louis, etc., R. R. Co. v. Britz 8 Chic. Legal News 108; 1 Redf. on Railways 553; Shearman & Redf. on Negligence, §§ 103-5; 2 S. L. Rev. N. S. 108. And the railway company is responsible for injuries done an employee by the fault of a co-employee, only where the latter represents it. Brabbits v. C. & N. W. Ry. Co. 38 Wis. 289. In other respects, the employee assumes the risk of such injuries together with the other risks incident to the employment. Gartland v. T. W. & W. Ry. Co. 67 Ill. 498. It is beyond the scope of an agent's authority to order an employee of his principal to do work for which he was not employed. Moore v. Sanborne 2 Mich. 529; Parker v. Erie Ry. Co. 5 Hun 57; Isaacs v. Third Ave. R. R. Co. 47 N.Y. 122.

George W. Hayden and Wm. H. Parks for defendant in error. A corporation is responsible for injuries resulting from the negligence of a representative in requiring an inexperienced subordinate to incur risks not in the course of his duty. Goddard v. Grand Trunk Ry. Co. 57 Me. 223; Coombs v. New Bedford Cordage Co. 102 Mass. 572; Railroad Co. v. Fort 17 Wall. 558; Greenleaf v. Ill. Cent. R. R. Co. 29 Ia. 14; 2 S. L. Review 116; Lalor v. C. B. & Q. R. R. Co. 52 Ill. 401. An employee who has entire control over a subordinate employee, and the right to discharge him, is not his co-employee (Mann v. Oriental Mill Co. 14 Am. L. Reg. 725; Indianapolis etc. Ry. Co. v. Love 10 Ind. 556; Railway v. Jackson 55 Ill. 492; Shearman & Redf. on Negligence § 102), but in effect his employer, Flike v. Bost. & Alb R. R. Co. 53 N.Y. 551. Comp. L. § 2351 was amended and modified in 1 Sess. L. 1873 Act 198 Art. V. §§ 7-8, allowing more latitude in assessing damages. Where a railway company is liable in damages for the death of an employee, actual, not vindictive damages are recoverable, Ihl v. R. R. Co. 47 N.Y. 317, provided the jury finds no contributory negligence. Oldfield v. N. Y. & Harlem R. R. Co. 14 N.Y. 310; McIntyre v. R. R. Co. 37 N.Y. 288; Quin v. Moore 15 N.Y. 433; Field on Damages 516 It is to be largely left to the jury to decide what the actual damages were, from the facts and circumstances; no special damage need be alleged or proved. Ill. Cent. R. R. Co. v. Barron 5 Wall. 90; Tilley v. H. R. R. R. Co. 29 N.Y. 252; O'Mara v. R. R. Co. 38 N.Y. 445; Sedgwick on Damages 647 n. The distributee need not be shown to have had any legal claim on the deceased for support. Field 505; 2 Redf. on Railways 246 n; 250 n. The jury may give prospective damages on proof warranting it, Drew v. Sixth Ave. R. R. Co. 26 N.Y. 50; it cannot be bound by any precise rule. Penn. R. R. Co. v. Ogier 35 Penn. St. 60.

OPINION

Cooley, C. J.

The case of the plaintiff in the court below was substantially the following:

In May, 1875, Williams, the intestate, a young man between seventeen and eighteen years of age, was living with his mother, the plaintiff, and his sister. He was a little lame, and not strong intellectually. He was employed by the railway company and set at work as a common laborer with a construction train at one dollar and forty cents per day, which were then the customary wages of common laborers. Brakemen at the same time were paid two dollars a day. It was not shown that in hiring Williams anything was said regarding the particular service to be required of him, but it was claimed by the plaintiff that the wages to be paid sufficiently indicated the service, and we think there was some evidence tending to show that service as a common laborer alone was bargained for. One Smith was in charge of the construction train and of the laborers employed therewith, and though there were regular brakemen, he sometimes directed Williams to perform that service on particular occasions though he had previously had no experience as brakeman. On a certain day in June, 1875, Williams was on a flat car near the engine, assisting in unloading ties, when Smith ordered him to go back to the caboose and help stop the train. He started back, and was not seen again until it was discovered that he had fallen between the cars and been run over, receiving injuries which speedily resulted in his death. On these facts it was claimed that the sending of Williams forward to act as brakeman was wrongful, and in view of the dangerous character of the service was negligent, and that as the railway company had put Williams under the direction and control of Smith, and subjected him to Smith's orders, it was responsible for Smith's wrongful conduct, and the death of Williams was consequently a death caused by the wrongful act, neglect or default of the railway company, for which an action would lie under the statute. It was to recover damages for thus causing his death that the suit was brought. As bearing upon the question of liability, special stress was placed by the plaintiff on the youth, weakness and inexperience of Williams, and the case was submitted to the jury under the following instruction: "If you find that the deceased at the time he was employed by the defendant was a lad of seventeen or eighteen years of age, inexperienced in the handling of brakes, on a train of cars, such as that in question, and that he was unfitted for that work by reason of his unskillfulness, inexperience and youth, and this was known to Smith; that he was employed by defendant at the time of his death and for some months previous thereto in the capacity of a common laborer only, and was ordered by Smith, the foreman and conductor of the construction train in question, acting for and as the agent of said defendant within the scope of his authority, to brake on said train out of the line of his duty as such common laborer, and that while attempting to obey such order he fell from the cars and was killed, without negligence on his part, and by the negligence of the defendant or its agent Smith, the case of the plaintiff is established and she is entitled to recover."

Evidence was given on the part of the defense to show that common laborers with construction trains were accustomed on occasion to assist with the brakes, and that Williams had requested the privilege of doing so in order that he might learn the business; but in finding as they did for the plaintiff the jury must necessarily have found against this evidence, and we must assume in reviewing the case that the facts were as the plaintiff claimed.

The principal question of law which the record presents is whether, on the hypothesis stated in his instruction, the conclusion drawn by the judge lawfully follows. In discussing this question it has been assumed by counsel on one side and conceded on the other that in general the employer is not liable to one of his servants for an injury suffered by him in consequence of the negligence or wrongful act of another servant in the same general employment, and that, as between himself and his employer, each servant takes upon himself all the risks of the employment. But while conceding this, it is claimed on behalf of the plaintiff that if the master wrongfully sends his servant into a dangerous place or exposes him to a risk not connected with the service, and in consequence he is injured, the rule which exempts the master from responsibility has no application, because the risk is not one which the servant has assumed. It is also contended that if, instead of being sent by the master in person, the servant is thus wrongfully exposed to danger by one whom the master has placed over him, and to whose orders he is subjected, the responsibility is the same; the wrongful act of this superior being in law the wrongful act of the master himself. These positions are met on the part of the defense with two propositions, either of which, if sustained, is fatal to the action. These we state in our own language, as follows:

I. That on the plaintiff's theory of the facts Williams was under no obligation to obey the order of Smith, and if he did obey it, his doing so must be regarded as his own voluntary act. If there was negligence in sending him to stop the train, there was negligence on his part in going, and therefore, conceding that in giving the command Smith stood in the position of the railway company, and that the company must assume his act, the case is the ordinary one of contributory negligence, and the action must fail on that ground.

II. That if Smith, when he sent Williams to stop the train, was putting him to a service he had not engaged to perform, the act was not within Smith's authority as conductor, but in excess of his powers, and if wrongful was the tort of Smith alone, as much so as if he had committed an assault upon Williams; and neither morally nor legally can the railway company be held responsible.

The fact that Williams was under no obligation to obey the order of Smith, is not in our opinion sufficient to sustain the first proposition. When one person engages in the employment of another,...