Chicago, Burlington & Quincy Railroad Company v. Kellogg

• Decision Date: 03 March 1898
• Docket Number: 7797
• Citation: Chicago, Burlington & Quincy Railroad Company v. Kellogg, 74 N.W. 454, 54 Neb. 127 (Neb. 1898)
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. GEORGE KELLOGG. [*]
• Court: Nebraska Supreme Court

74 N.W. 454

54 Neb. 127

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. GEORGE KELLOGG. ^[*]

No. 7797

Supreme Court of Nebraska

March 3, 1898

ERROR from the district court of Phelps county. Tried below before BEALL, J. Affirmed.

AFFIRMED.

J. W Deweese, F. E. Bishop, W. S. Morlan, and W. P. Hall, for plaintiff in error.

A. J Shafer, S. A. Dravo, and Stewart & Munger, contra.

OPINION

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, Nebraska; 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 on 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 the 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. (Missouri P. R. Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044; Kearney 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, those 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 railway 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. (Omaha & R. V. R. 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. Ency. Law p. 821. See, also, a statement of the rule and a collation of authorities by Allen, J., in Wright v. New York C. R. Co., 25 N.Y. 562.) In this case the evidence shows that the railway 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 Union P. R. 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 employe 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-employe to properly load or store the coal on the engine's tender, and it was said: "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 there must be some consociation in the same department of duty or line of employment." In Union P. R. Co. v. Doyle, 50 Neb. 555, 70 N.W. 43, it was held that a section hand in the employ of the railway company, engaged with other employes of the company who were hauling dirt and gravel with a construction train and ballasting the railway track, was not a fellow-servant of the conductor of such gravel train. In that case it was also held: "Where one of several employes of the same master is a vice-principal as to his co-employes or whether all are fellow-servants, is not always a question of fact, nor always a question of law. Generally it is a mixed question of law and fact and to be determined in any case by the particular facts and circumstances in evidence in the case in which it is presented." In the case at bar, if we are to consider that the verdict of the jury includes a finding that Kellogg, the station agent, was not a fellow-servant of his co-employe, the car repairer or inspector, the evidence in the record justifies that finding; and if from the admitted facts it is for us to say as a matter of law whether the station agent and the car repairer or inspector were fellow-servants, then we answer that they were not. In Morton v. Detroit, B. C. & A. R. Co., 46 N.W. 111, it was held that a brakeman in the employ of the railway company was not a fellow-servant of another employe of the company whose duty it was to inspect and keep in repair the brakes.

3. Counsel for Kellogg, in his argument to the jury after the close of the testimony, used the following language: "The defendant company forces its parasites to swear in its behalf. The employes of the defendant are surrounded by superintendents and assistant superintendents who hold them by the neck and say to them: 'Oh, how easy I can drop you, how easy I can drop you.'" It is now insisted that this was such misconduct on the part of counsel for the plaintiff below as calls for a reversal of the judgment rendered. It must be conceded that counsel permitted his zeal for his client to carry him too far; that the language is totally unwarranted by the record and not within the range of the legitimate inferences and deductions which might be drawn from the evidence; that it was calculated to arouse the passions and prejudices of the jury, too easily excited in cases like this, and instead of assisting them to calmly inquire as to whether the plaintiff below had been injured through the negligence of the railway company, and if so, the extent of such injury and what amount of money would compensate him therefor, and render a verdict accordingly, this language was calculated to inspire the jury with a desire to punish the railway company for the injury which its negligence had inflicted upon the plaintiff. That these poisonous shafts of fiery invective did their work we think is manifest from...