Arizona Eastern R. Co. v. Bryan

• Decision Date: 14 April 1916
• Docket Number: Civil 1466
• Parties: ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. W. N. BRYAN, Appellee
• Court: Arizona Supreme Court

157 P. 376

18 Ariz. 106

ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. W. N. BRYAN, Appellee

Civil No. 1466

Supreme Court of Arizona

April 14, 1916

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

The appellee, W. N. Bryan, was in the employ of the appellant company as track foreman, or section foreman. His employment required him to engage for the company a sufficient crew of laborers, known as a section crew, to keep the railroad track in repair, and to handle the necessary repair material and tools for use in the work. The section foreman was furnished by the company with the necessary tools and appliances for the performance of his duties and for the performance of the duties of the crew of laborers, and was held responsible to the company by specific instructions for the due care of these tools furnished and for the direction of the crew in the performance of their labor.

The railroad company was engaged in interstate commerce business and used the track in question in connection with the carrying on of such interstate commerce business. The foreman was furnished, as a part of his equipment of tools, a hand-car equipped with appliances to propel it on the track by hand power by means of a lever or "walking-beam," and the power was furnished by members of the crew of laborers. A brake attachment was a part of the hand-car equipment. The hand-car was for the use among other things, of moving material from points along the track to points where it was to be used for repairs. A push-car was also furnished the foreman for use likewise in moving material when necessary. The push-car had no means of propelling it, but is a platform mounted on wheels, and intended to be pushed on the railroad track, or drawn on such track by hand or other power. The top of the platform of the push-car furnished the foreman, and in use at the time of the injury hereinafter referred to, was lower than the platform of the hand-car in use at the time of said injury.

On about the fifth day of May, 1913, the said section crew at the direction of said foreman was engaged in repairing the said railroad track at a point about two and one-half miles west of a station on said railroad called Branaman, and such repairs required material. The necessary material therefor was kept by the railroad company at Branaman station, and it was the duty of the foreman and section crew to take the material from Branaman station to the point where it was required by means of the hand-car, or the hand-car with the push-car. The means to be used for such purpose was left to the judgment of the foreman. The foreman ordered six men of the crew to accompany him for the material, and ordered the push-car and the hand-car to be taken for the purpose. The push-car was placed on the track in front of the hand-car. The men of the crew were placed on the hand-car and were required to propel both cars by means of the walking-beam appliance. To accomplish this purpose some of the men operating the walking-beam would face toward the push-car but would be on the hand-car farthest from the push-car while others of the men operating the lever were placed with their backs to the push-car, but were standing on the hand-car nearest to the push-car. So placed, the foreman took his position standing on the platform of the push-car, and they started for Branaman station to get the material needed. While proceeding in the direction of said station, at a rate of about five miles per hour, at a cut along the road and ascending a slight grade, and while the foreman was standing with his back toward the hand-car, and looking out for ore trains that the company operated over that track without schedule, one of the section-men operating the lever on the hand-car, and standing nearest the push-car, gave the push-car a sudden push or kick with his foot and sent the push-car suddenly forward of the hand-car, causing the foreman to fall from the push-car on the track between the two cars, and to be bruised and crushed by the hand-car running over and severely injuring him.

The appellee's cause of action is based upon the negligent and careless act of the employee in pushing or kicking the push-car, relying upon the federal Employers' Liability Act. The appellant defendant denies negligence, asserts that the plaintiff contributed to the negligence, and asserts that the plaintiff assumed the risk. Relying upon these defenses, the cause was tried to the court with a jury, and the jury returned a verdict for the plaintiff for the sum of $10,000, and a judgment followed for plaintiff. A new trial having been refused, the defendant appeals.

Other facts appear in the opinion.

Mr. Eugene S. Ives, for Appellant.

Messrs. Armstrong & Lewis and Mr. G. P. Bullard, for Appellee.

OPINION

CUNNINGHAM, J.

(After Stating the Facts as Above). The appellant's assignments of error generally classified attack the sufficiency of the complaint; the instructions given; the orders of the court refusing to give instructions requested; the modification by the court of an instruction requested; the admission of improper evidence; and the misconduct of the jury.

The original complaint set forth the alleged cause of action in two counts. The first count was based upon the common-law action for negligence, and the second count was based upon the federal Employers' Liability Act. At the trial the plaintiff expressly elected to proceed under the second count, or relied upon the federal Employers' Liability Act for a recovery, and abandoned his first count. The second count of the complaint setting forth the act of negligence is as follows:

"That while engaged and employed by the said company at the time and place aforesaid this plaintiff was required, in the course of his said employment and in the said business of said defendant, to go, with other employees of said defendant, upon a certain hand-car and push-car for materials for the repair and construction of said tracks of defendant aforesaid; that in the course of such employment the said plaintiff, as he was directed to do by the defendant, was standing upon the said push-car in front of the hand-car upon which were other employees of said defendant, to wit, the section gang; that while so proceeding for materials as aforesaid, and while said hand-car and push-car were proceeding at the rate of about five miles per hour, one of the said employees standing upon the hand-car aforesaid negligently and carelessly did give the said push-car whereon this plaintiff was then standing a sudden push and kick; that by and through the said carelessness and negligence of the said defendant, and without any fault upon the part of the plaintiff, and while the said plaintiff was in the exercise of due care for his own safety, the said plaintiff was thrown from said push-car, and fell, . . ." and was injured.

Appellant contends that the complaint fails to state facts constituting a cause of action for the reason:

"It is not alleged that the man who kicked the car was acting in the course of or within the scope of his employment when he kicked the car."

The appellant argues: "It is essential, in order that the master be liable for the act of the servant, that the act should have been within the scope of the employment of the servant. In the absence of an allegation directly to such effect or from which an inference to such effect should be drawn, the complaint is fatally defective."

The master is not liable for any and every negligent act of his servant. It is necessary to show that the negligence was committed by the servant while engaged in the service and in some way connected with the doing of the service. Cincinnati etc. R. Co. v. Voght, 26 Ind.App. 665, 60 N.E. 797.

If we concede that the complaint fails to show that the negligence was committed by the defendant's servant while engaged in the service, and in some way connected with the doing of the service, we are not precluded from looking to the entire pleadings, including the answer of the defendant for the purpose of determining the issues joined and tried. The answer admits expressly that the defendant was engaged in interstate commerce, and that the plaintiff, "together with other employees, . . . did proceed upon a certain hand-car and push-car for materials for the repair and construction of defendant's right of way at the place mentioned in plaintiff's complaint." If any defect exists in the language of the complaint failing to set forth the fact that the man who kicked the car was acting in the scope of his employment, the answer cures such defect, for the reason defendant admitted that the injury was inflicted at a time the plaintiff, together with other employees, were in the performance of their duty in defendant's employment.

The facts set forth in the complaint, aside from the answer, clearly show that the negligent act was committed by defendant's servant while engaged in the service for which he was employed. True, the servant was not instructed to kick the push-car, but his duty required him, with others in the same employment, to propel it to the place required for its use, and for some reason not appearing he did kick the car forward, and from such act the injury resulted. The direct allegation that the servant whose negligent act is relied upon was acting within the scope of his employment at the time of the alleged negligence, while preferable as avoiding all questions, yet, when the complaint, as here sets forth facts which admit of no inference other than the inference that he was so acting at the time, the same end is attained by the pleading, and the defendant is sufficiently...