Gavigan v. Lake Shore & M.S. Ry. Co.

• Citation: 110 Mich. 71,67 N.W. 1097
• Parties: GAVIGAN v. LAKE SHORE & M. S. RY. CO.
• Decision Date: 08 July 1896
• Court: Supreme Court of Michigan

67 N.W. 1097

110 Mich. 71

GAVIGAN v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

July 8, 1896

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

Action by Andrew J. Gavigan against the Lake Shore & Michigan Southern Railway Company. There was a judgment for plaintiff and defendant brings error. Reversed.

C. E Weaver (Geo. C. Greene and O. G. Getzen-Danner, of counsel) for appellant.

Corvis M. Barre, E. J. March, and Watts, Bean & Smith, for appellee.

HOOKER J.

The plaintiff was a section hand upon a railroad, and had many years experience in such capacity, and as foreman of such gangs. On the day that he was injured, the section gang of which he was a member, and a gang of an adjoining section, were engaged in relaying a spur-track with rails that had been unloaded at a point upon said track. In order to distribute such rails, it was necessary to move two freight cars standing upon the track, and the plaintiff attempted to climb upon one to set the brake. While climbing up the ladder at the end of the car, the other car was pushed against him by the other men engaged in the work, and he was injured. He testified that he was ordered by the section boss in charge to climb upon the car, and that he supposed that he would have lost his place if he had refused, and that it was not a part of the duty of section men to move cars, or climb upon them to manipulate the brakes. The uncontradicted evidence shows that the plaintiff and all of his co-laborers obeyed, without protest or question, the direction to move the loaded car, and by pushing and the use of bars they had moved it for a distance, and to a point where the dust and dirt of the highway made the work difficult. Then they resorted to bumping the loaded car with an unloaded one, all uniting in pushing it with force against the loaded car several times, thereby moving it to a point in close proximity to the main track. It was to prevent its being run into the switch and upon the main track that the direction to climb the car and put on the brake was given.

We have so often held that the section boss is a fellow servant with the men under him, and pointed out the distinctions applicable to the question of fellow service, that we deem it unnecessary to repeat them here. We have no doubt that, in running the car back and forth, all of those engaged were fellow servants. The important questions are: (1) Was the plaintiff asked to perform an extraordinary service outside of the scope of his employment, in moving the cars, and in climbing the ladder for the purpose of setting the brake? (2) If so, does it follow that the act of the section boss in requesting such service was the act of the master, and is the master liable for the injury under such circumstances?

Counsel for the plaintiff appears to contend for the broad propositions that, in directing a service outside of the scope of the employment, the boss represented the master, and that, by consenting to perform the service, the plaintiff did not assume the risk, inasmuch as he might be discharged by the boss if he refused to perform the service. In other words, the master is to be considered an insurer of the servant performing extraordinary service by direction of a superior, whenever he chooses to obey a direction of one in charge for fear of discharge. If the master is to be charged with neglect, it is for a failure to perform a duty, and, had he himself given the command in this case, the only possible negligence would be the request to perform extraordinary service, unless there was some hidden danger from the service. Many cases hold that, where an employ� of mature years and of ordinary intelligence and experience is directed by the employer himself to do a temporary work, outside of the business he has engaged to do, and enters upon its performance without objection on account of his want of skill, knowledge, or experience in doing such work, no negligence can be predicated upon such act alone. Bailey Mast. Liab. 220, and cases cited. The master who asks a servant to perform some hazardous employment outside of his employment, the danger of which is not apparent, and of which the master is advised, is under an obligation to inform the servant of such danger; but where the danger is obvious, or equally known and apparent to both, the case is different. The analogy is close between such a case and one where one employs an infant or inexperienced person. In such case the master owes a duty to point out the danger; but, where the danger is obvious or known to such person, there is no such duty. McGinnis v. Bridge Co., 49 Mich. 466, 13 N.W. 819; To view preceding link please click here Welch v. Brainard (Mich.) 65 N.W. 667.

Counsel for plaintiff cite us to the cases of Railroad Co. v Bayfield, 37 Mich. 205, and Jones v. Railway Co., 49 Mich. 573, 14 N.W. 551, in support of their contention. A quotation from Bailey, Mast. Liab., is in point here. "While great stress is laid in some cases upon the fact that the risk has been increased, as well as, in other cases, that the servant was injured while in the performance of a hazardous act outside of his general employment, yet it is difficult to ascertain that any special importance is to be attached to that fact alone, any further than that the risks of the general employment, thus increased, are not assumed as risks incident to the employment; and therefore knowledge thereof, actual or presumed, must be shown by the master, unless they are such as are obvious, requiring no special knowledge or skill to understand or appreciate. If such dangers are not obvious, and the employ� may not be presumed to understand or appreciate them, then he must be warned and instructed. I know of no rule that, where the servant fully understands and comprehends the dangers of an increased risk, or of a risk attendant upon a temporary or occasional act of service, and he performs...