Chi., B. & Q. R. Co. v. Kellogg

• Decision Date: 03 March 1898
• Citation: 74 N.W. 454,54 Neb. 127
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. KELLOGG.

54 Neb. 127

74 N.W. 454

CHICAGO, B. & Q. R. CO.

v.KELLOGG.

Supreme Court of Nebraska.

March 3, 1898.

Syllabus by the Court.

1. In a suit for damages by a station agent of a railroad company against it for injuries he had sustained while attempting to set a defective brake on one of its cars, the petition does not fail to state a cause of action because it does not aver that the railroad company knew of the defective condition of the brake, or that the brake had been out of repair for such a length of time that the railroad company, by the exercise of ordinary care, could have discovered its defective condition.

2. That the brake became out of repair a short time before the accident; that the railroad company had no knowledge of its defective condition, and could not, by the exercise of ordinary care, have discovered it before the accident,--are matters of defense.

3. It is the duty of a master to furnish the servant tools and appliances reasonably safe and fit for the purposes for which they are designed; and if the master neglects to do this, and the servant is injured without fault on his part, the defect in the instrument or appliance not being obvious, the master is liable.

4. It was the duty of the station agent to set the brakes on cars left at his station, but it was not his duty to inspect the brakes on such cars, nor to repair them, if he discovered them out of order. Held, that the agent had the right to presume that the car brake was in proper condition, and reasonably fit for the purposes for which it was designed.

5. It is not the law, except where made so by statute, that a master is liable to a servant for an injury which the latter has received through the negligence of a fellow servant.

6. If a car inspector whose duty it is to keep the brakes in repair neglects that duty, and his co-servant--for instance, a station agent--is injured by that neglect, the railway company is liable for such injury. But the reason is that the relation existing between the inspector and station agent is that of vice principal and servant, the negligence of the inspector being the negligence of the master.

7. A station agent, whose duty it is to set brakes on cars left at his station, but who is not charged with the duty of inspecting or repairing the brakes, is not a fellow servant of his co-servant, who is a car inspector, and charged with the duty of inspecting and repairing the brakes.

8. The rights and duties of counsel employed to conduct litigation considered and stated in the opinion.

9. A litigant, to take advantage of alleged misconduct of opposing counsel, must call the attention of the trial court to such misconduct at the time it occurs; ask the trial court for protection therefrom; preserve in a bill of exceptions the alleged misconduct, with the ruling of the trial court and the exceptions thereto; and present the record of what occurred, and the rulings of the trial court, as an assignment of error in the proceeding brought here.

10. This court in error proceedings does not review the conduct of counsel in the case, but reviews the rulings, orders, and judgment of the district court; and, if it did not make or refuse to make an order in reference to the conduct of counsel, this court cannot make one.

11. The charge of the court reviewed, and held erroneous, but not prejudicial.

Error to district court, Phelps county; Beall, Judge.

Action by George Kellogg against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.J. W. Deweese, W. S. Morlan, and F. E. Bishop, for plaintiff in error.

A. J. Shafer, S. A. Dravo, and Stewart & Munger, for defendant in error.

RAGAN, C.

The Chicago, Burlington & Quincy Railroad Company has filed a petition here to review a judgment of the district court of Phelps county pronounced against it in favor of George Kellogg.

1. The first argument is that the petition does not state a cause of action. Kellogg in his petition in substance alleges that on the 7th of August, 1892, he was a station agent of the railway company at Bertrand, Neb.; that it was his duty as such agent to set the brakes on cars left by passing trains on the side tracks at that station to prevent the wind blowing the cars off the side track onto the main line; that about 10 o'clock in the evening of said date he went upon a car standing on a side track at his station for the purpose of setting a brake thereon, and that as he turned the brake a wire, which connected the brake chain with the brake rod, broke, precipitating him from the car on the bumpers thereof, and injuring him; that he had no knowledge of the defective condition of the brake; that the company had negligently permitted this brake to become and remain out of repair, in this: that the chain which connects the brake with the brake rod should be fastened to the latter by a half-inch iron bolt; that this had been lost out, and some one had connected the rod and chain with a wire which was wholly unfit for that purpose. It is now insisted that this petition does not state a cause of action, because it does not allege that the company knew that the brake was out of repair, had been improperly repaired with a wire, or that it had been in that condition for such a length of time that the company should be charged with notice of its defective condition. We think this argument untenable. It is the duty of a master, at all times, to furnish his servant with tools and appliances reasonably safe and fit for the purposes for which they are designed; and if a servant, where the defect of an appliance is not obvious, and where he has no knowledge of such defect, and is not charged with the duty of knowing of such defect without negligence on his own part, is injured while attempting to use in the service of the master a tool or appliance designed for the work in hand, the master is liable for such injury. Railway Co. v. Baxter, 42 Neb. 793, 60 N. W. 1044;Electric Co. v. Laughlin, 45 Neb. 390, 63 N. W. 941. If this brake had become defective a short time before the accident, if the master did not know of it, and could not by the exercise of ordinary care have discovered it before the accident, these facts were matters of defense for the master. Since it was not the duty of the station agent to inspect this brake, nor to repair it if he found it defective, and since he did not know that the brake was out of order, he had the right to presume that it was in proper condition and reasonably fit for the purposes for which it was intended; and the general allegation that the railroad company had been guilty of negligence in permitting the brake to become and remain out of repair, coupled with the other allegations of the petition as to the plaintiff's duty, and his want of knowledge of the defective condition of the brake, rendered the petition invulnerable to demurrer. Railroad Co. v. Wright, 49 Neb. 456, 68 N. W. 618.

2. A second argument is that the judgment cannot stand because Kellogg's injury resulted from the negligence of a fellow servant. It is true that, in the absence of statute, the general rule is that a master is not liable to one servant for an injury which he has sustained through the negligence of a fellow servant. See the rule stated and the authorities collated in 7 Am. & Eng. Enc. Law, p. 821. See, also, a statement of the rule and a collation of authorities by Allen, J., in Wright v. Railroad Co., 25 N. Y. 562. In this case the evidence shows that the railroad company has in its employ, at various stations along its road, car repairers or inspectors whose duty it is to inspect the cars of the company, the wheels and brakes and other appliances thereof, and, if a brake is found out of order, to repair it. The evidence does not disclose that it was the duty of the station agent, Kellogg, to inspect the cars that came to his station, nor, should he discover that a car or an appliance thereof was out of order, that it was his duty to repair it. The evidence further shows that the brake beam of a freight car is connected with a brake rod by a chain, and that this chain is connected with the brake rod by an iron bolt; that the brake which Kellogg was using at the time he was injured had the rod connected with the chain thereof by a wire totally unfit for that purpose. How long this bolt had been missing from the brake rod the evidence does not show. When, where, or by whom the rod and chain were connected by wire the evidence does not show. The car was traced from the yards in Kansas City to Bertrand, and the car inspectors testified to having inspected it at Kansas City, and at various stations along the line from there to Bertrand, and that they did not observe the defective condition of the brake. At the time Kellogg was injured the car had been standing for several days on the side track at his station. From the marks and flattened condition of the wire, an inference is justifiable that the wire had been used on the brake for some time before the car reached Bertrand. We do not intend in this case to lay down, or attempt to lay down, any rule for determining when two servants of the same master are “fellow servants,” within the legal definition of that term. In Railway Co. v. Erickson, 41 Neb. 1, 59 N. W. 347, it was held that a section hand in the employ of the railway company, and engaged in keeping the track in repair, was not a fellow servant with another employé of the company engaged in the business of loading coal on the tenders of the company's engines. In that case Erickson had been injured through the neglect of his co-employé to properly load or store the coal on the engine's tender, and it was said that “employment in the service of a common master is not alone sufficient to constitute two men fellow servants, within the rule exempting the master from liability to one for injuries caused by the negligence of the other. To make the rule applicable,...