Arthur Ingram's Admrx. v. Rutland Railroad Co.

• Decision Date: 11 October 1915
• Parties: ARTHUR INGRAM'S ADMRX. v. RUTLAND RAILROAD COMPANY
• Court: Vermont Supreme Court

95 A. 544

89 Vt. 278

ARTHUR INGRAM'S ADMRX. v. RUTLAND RAILROAD COMPANY

Supreme Court of Vermont

October 11, 1915

Special Term at Brattleboro, February, 1915.

CASE for negligence. Plea, the general issue. Trial by jury at the September Term, 1914, Windham County, Waterman, J presiding. At the close of all the evidence defendant moved for a directed verdict. Motion overruled, to which defendant excepted. Verdict and judgment for the plaintiff. The defendant excepted. This case has been once before in the Supreme Court, see 86 Vt. 550.

Judgment affirmed.

E W. Lawrence for the defendant.

Arthur Carpenter, Clarke C. Fitts and Hermon Eddy for the plaintiff.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.

OPINION

POWERS

Arthur Ingram, a fireman on a Boston & Maine switcher, was killed by a Rutland Railroad switcher in the yard at Bellows Falls, on the evening of October 30, 1909. His administratrix brought this action to recover damages for the alleged negligence in the handling of the Rutland switcher, and the case came before us on the pleadings, as shown by Ingram's Admrx. v. Rutland Railroad Co., 86 Vt. 550, 86 A. 813. The plaintiff has now obtained a verdict in her favor, and the defendant again brings the case here on exceptions. The questions presented arise under the defendant's motion for a directed verdict, and may be stated as follows:

1. Did the defendant owe Ingram the duty of active care?

2. Was the defendant negligent?

3. Did the plaintiff sustain the burden of showing that Ingram was in the exercise of due care?

All these questions, the defendant insists must, on the record now before us, be answered in the negative.

1. When the case was here before we held that Ingram was not a trespasser when killed. The defendant seeks to avoid this holding as to Ingram's standing by the fact now shown by the record that the rights of the Boston & Maine in the yard of the Rutland at Bellows Falls, were not general, as stated in the declaration, but limited, as shown by the proof. It now appears that the joint use of the Bellows Falls yard only extended to certain tracks and purposes, and it is urged that this shows that Ingram was, when killed, wholly outside his rights in the yard as a Boston & Maine employee, and was either a trespasser, or, at most, a mere licensee, to whom the Rutland owed no duty of active care.

We are unable to accept this view. The trouble with it is just this: It appears by this record that all that part of the yard in any way involved in this case was subject to the joint use of these companies, so far as the purposes for which the Boston & Maine switcher and crew were then in the yard were concerned. The Boston & Maine engine crossed over into this yard for a legitimate purpose, was all the time where it had a right to be, and as long as its crew were engaged in their duties there they were entitled to the protection which the law, under the arrangement, afforded them. The contrary is not claimed. So Ingram's standing at the time of the accident is to be determined by what he did after the Boston & Maine switcher came to a stop to allow the Rutland switcher to get out of the way.

It is earnestly argued by the defendant that when Ingram left his engine, a place of safety, and went across the tracks to the milk station for a glass of milk, he lost his standing as an employee of the Boston & Maine, and came to be, like the plaintiff in Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120, outside the protection which that relation afforded him--a trespasser or mere licensee. But as we have said, he did not depart from that part of the yard in which he had a right to be, and we held when the case was here before that he was not a trespasser when he was on his way back to his engine. Ingram's Admrx. v. Rutland R. R. Co., 86 Vt. 550, 554, 86 A. 813. This holding is the law of the case, for the facts are not now materially different.

We are not disposed to depart from the doctrine of this holding. We are not unmindful of the general rule that puts a servant outside a recovery from his master, where he has, when injured, left his working place and gone elsewhere on some errand of his own. In such a case the relation of master and servant is temporarily suspended and is not restored until the servant's return. So, if Ingram's conduct amounts to such a departure from the business of his employer, there can be no recovery here; during his absence from his post the defendant would not owe him the duty of active care, and no actionable negligence would be shown by this record. It is not always necessary, however, to entitle a servant to recover against his master, that he should be at the moment of injury, actually at work in his proper place and in the business of the master. The law allows him some measure of latitude; and while there is a sharp conflict in the cases as to the limits of this latitude, and some apply the general rule above referred to with great strictness, there is much to commend in the inclination manifested by some courts toward a liberal regard for the just interests of the servant in such cases. Southern Ry. Co. v. Bentley, (Ala.) 56 So. 249. So the circumstances may be such that the master's duty will cover the servant's trip across the premises to and from his working place. Janilus v. International Paper Co., (Me.) 92 A. 653; Whatley v. Zenida Coal Co., 122 Ala. 118, 26 So. 124; Virginia Bridge Co. v. Jordan, 143 Ala. 603, 42 So. 73, 5 Ann. Cas. 709; and the circumstances may be such that a servant may step aside to get a drink of water, Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 So. 96; Woodward Iron Co. v. Curl, 153 Ala. 215, 44 So. 969; Jarvis v. Hitch, (Ind.) 65 N.E. 608; may go inside a building to get warm, Parkinson Sugar Co. v. Riley, 50 Kan. 401, 31 P. 1090, 34 Am. St. Rep. 123; may withdraw to answer a call of nature, Houston & T. C. R. Co. v. Turner, (Tex.) 91 S.W. 562; may stop to talk with a fellow workman, Moore v. Pickering Lumber Co., (La.) 29 So. 990; may go to a convenient place to eat or wash. Muller v. Oakes Mfg. Co., 113 A.D. 689, 99 N.Y.S. 923; Low v. Gen. Steam Fishing Co., (1909) App. Cas. (Eng.) 523; Rhea v. Mo. Lac. Ry. Co., (Mo.) 156 S.W. 4; to get fresh air, McCloherty v. Gale Mfg. Co., 19 Ont. App. 117; to hang up his coat, Cordler v. Keffel, (Cal.) 119 P. 658; or even to rest, Jacobson v. Merrill, etc. Mill Co., 107 Minn. 74, 119 N.W. 510, 22 L.R.A. (N. S.) 309;--without forfeiting his rights as an employee. See note to Charron v. Northwestern Fuel Co., (Wis.) Ann. Cas. 1913C, 939. Such digressions and interruptions are to be expected, and when reasonably necessary, are held to be within the contemplation of the parties when the contract of employment is entered into, and covered thereby. The relation is not, in such cases interrupted, but continues.

Whether this is so, however, depends upon the circumstances, and the question presented in a given case is usually one of fact. N.W. Union Packet Co. v. McCue, 17 Wall. 508, 21 L.Ed. 705. The case before us is not, in this respect, exceptional. The transcript shows that Ingram's hours were uncertain. While it does not appear that there was extra work to be done the night of the accident, it does not appear that there was not. It does appear that he received as wages $ 1.96 for ten hours, and that he worked overtime almost every day, though he could not exceed sixteen hours in any one day; and that his overtime brought his average daily wage up to $ 2.65--which means an average of about three hours overtime per day. It was about six o'clock in the evening. If he was to work three hours longer, it was to be expected that he would require something to eat from some source about this time. It cannot be said as a matter of law that he ceased to be an employee, when, without neglecting his duties, he stepped into the restaurant at the station for a lunch or ran over to the milk station for a glass of milk. The jury could properly find on the evidence that Ingram was in the line of duty when the defendant ran over him; and if he was, the defendant owed him the duty of exercising the care of a prudent man to avoid injuring him. Sawyer v. R. & B.R. Co., 27 Vt. 370; In re Merrill, 54 Vt. 200; Chicago & E. R. Co. v. Dinius, (Ind.) 103 N.E. 652; Turner v. B. & M. Railroad, (Mass.) 33 N.E. 520.

2. The yard was unlighted except as the lights at the milk station the switch lights and the lanterns of the men lighted it. The evidence was such that the jury was warranted in finding that none of these lights were of any aid to Ingram as he was hurrying back to his engine. Indeed, it might well be thought that they were worse than no lights at all, so far as he was concerned. The Rutland engine was pushing an unlighted milk car up one of the tracks Ingram had to cross to get to his engine. The Rutland engine had a headlight on each end of it, but this fact would be of small service to one in Ingram's position when called upon to judge the approach of the car; the engine was moving rapidly,--ten miles an hour--preparatory to kicking the car on out of the way; there was no man on the milk car to give warning; there was no light on it to show its exact location; the engine was working steam and making much noise. The conditions and operations were those usual in that yard, and it is altogether probable that they were familiar to Ingram. The rules of the two railroads required nothing more in the way of precautions. But it cannot be said that no inference of negligence can reasonably be drawn from these facts. We cannot accept the view that the rules, or the practice of that yard, or both together, made the question of the defendant's negligence one for the court. If this...