Armstrong v. Oregon Short Line & Utah Northern Railway Co.

• Decision Date: 13 March 1893
• Citation: 32 P. 693,8 Utah 420
• Court: Utah Supreme Court
• Parties: GEORGE C. ARMSTRONG, RESPONDENT, v. OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY, APPELLANT

32 P. 693

8 Utah 420

GEORGE C. ARMSTRONG, RESPONDENT, v. OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

March 13, 1893

APPEAL from a judgment of the district court of the third judicial district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs Williams and Van Cott, for the appellant.

Messrs Dey and Street, for the respondent.

ZANE C. J. BLACKBURN, J., and MINER, J., concurred.

OPINION

ZANE, C. J.:

This is an action by the plaintiff to recover damages in consequence of an injury to him, caused, as alleged, by the negligence of the defendant, while in its employ as a helper in its yards at Pocotello, Idaho. It appears from the evidence that the plaintiff was between an engine and some cars, in the night, uncoupling them, when fourteen or fifteen other cars came from the west, without warning, and without any light upon their front, and struck the ones that plaintiff was uncoupling, and knocked them east a considerable distance; that the plaintiff was thrown down, and the wheels passed over his leg and hand, which he lost. While the foreman should have known that the defendant was at work about the standing cars, those moving upon the same track in their direction passed him about sixty feet way, and no warning was given to the plaintiff. There were a large number of tracks in the yard in which plaintiff was injured, upon which there were at all times numerous cars, in the moving of which four switch engines were used in the day time and three at night. With each there were an engineer, fireman, and two helpers under the direction of a foreman. The foreman received general orders from the yard master before commencing work, and afterwards he directed the crew in their execution. We must conclude that the foreman, under whom plaintiff was at work, as well as the foreman who sent the cars down at such a rapid rate without signal or warning, was guilty of negligence, and also that the yard was not sufficiently lighted, and that such negligence caused the injury to the plaintiff.

The defendant insists that there cannot be a recovery in this action, because the plaintiff and the negligent foreman were co-operating as fellow servants at the time of the injury. The definitions given of the term "fellow servants" by the courts differ materially. The tendency of later decisions has been towards a narrower application of the term. The rule relied on by the defendant appears to be based upon the presumption that employes with equal authority of the same grade, working together, should, by their watchfulness, their suggestions, skill, care, caution and example, exercise an influence on each other promotive of diligence, care, and caution in all; that careful employes of the same grade, associated together in the performance of common duties, ought to stimulate like behavior in each other. To hold that fellow servants can recover damages against the common master for injuries from the negligence of each other, it is presumed, would not be promotive of such diligence and care as their safety and the safety of the...