Colorado Cent. R. Co. v. Ogden

• Decision Date: 01 December 1877
• Citation: 3 Colo. 499
• Parties: COLORADO CENTRAL R. R. CO. v. OGDEN.
• Court: Colorado Supreme Court

3 Colo. 499

COLORADO CENTRAL R. R. CO. v. OGDEN.

Supreme Court of Colorado

December, 1877

Appeal from District Court of Jefferson County.

THE appellee had judgment in the court below for $5,000.00. The facts are sufficiently stated in the opinion.

Messrs H. M. & W. TELLER, for appellant.

Messrs BROWNE & PUTNAM, for appellee.

ELBERT J.

This was an action of case brought by the appellee against the appellant for injuries received by him while in the employ of the appellant as conductor of one of its trains.

It appeared by the evidence that the appellee was the only conductor employed by the appellant; that it was his duty to take charge of a mixed train of cars, some for freight and some for passengers. That as such conductor it was the duty of the appellee to run all trains and to do all work that was to be done as conductor. That three-fourths of a mile from the Golden depot there was a coal bank where the company procured coal. That on the 12th day of April, 1872, the appellee took a locomotive with engineer and brakeman and went after three loaded coal cars, standing at the coal bank that on the way he took two empty box cars and pushed them before the engine to the vicinity of the coal bank where the accident happened. The track between the yard and the coal bank was only used to haul coal cars over. It also appears by the testimony of the appellee that the track was bad and had been so for some weeks; that he had seen that it was especially bad a week before, and that he had reported to A. C. Harris, assistant superintendent, its condition. The evidence disclosed that there was some low joints. The road-bed was narrow. The ties extended six or eight inches over the bank, the earth was about eight inches outside of the rails, and water was running against the bank. There was no claim that Harris had agreed or promised to repair the roadway.

It also appears by the testimony that the appellee took with him the two box cars, not intending to have them filled with coal, but to save the labor and trouble of hauling them to the yard, as they stood between the yard and coal bank. The appellee had knowledge of the defective condition of the roadway, and that it had not been repaired after notice. His attention was especially called to it as the train approached the defective point, and he attempted to signal the engineer to stop, but failed to attract his attention. The cars were thrown from the track, and the appellee's hip was broken, resulting in an injury more or less permanent.

The facts presented by the record involve the law respecting the important relation subsisting between a railroad company and its employees. The relation is that of master and servant.

If the superintendent Harris is to be regarded as a fellow-servant, and the negligence of which the injury was the result, as his negligence, the appellee cannot recover.

It is now the settled doctrine of both England and America, that the master is not liable for injuries suffered by one servant through the negligence of a fellow-servant. We do not deem it necessary to cite numerous authorities to a doctrine so generally recognized. The leading English case is that of Priestly v. Fowler, 3 M. & W. 1. The leading American case is that of Farwell v. Boston & Worcester R. R. Co., 4 Metc. 49. See, also, 1 Redfield on Law of Railways, s 131, and cases there cited.

The reason of the rule commonly assigned is that it is but just and fair that the servant should take upon himself the ordinary and usual hazards of his employment over which his employer has but little or no control, and against which he is best situated and best able to guard. Knowing the perils of the employment in which he engages, he is presumed to contract with reference to them and to demand and receive a compensation which covers them.

There are also other reasons in support of the rule springing from considerations of public policy.

As that a contrary rule would subject the master to unreasonable, and not unfrequently, ruinous burdens; that it would encourage the servant to omit that diligence and caution which is his best protection; that it would tend to an abatement of that vigilance which is one of the chief protectors of the public against the negligence of servants; that under the rule denying the remedy it becomes the special interest of the servant to protect himself, thus securing the protection of the public; that it concurs with the rule which makes the master responsible to third per sons, not only for his own negligence but for the negligence of his servants in securing from both master and servant the highest diligence and caution, and thus, without hardship to any one, secure the safety of all.

Qualifying the foregoing rule is the further rule that risks arising from the negligence of the master are not included among those which the servant is presumed to assume. On the contrary, the master impliedly (if not expressly) contracts to use ordinary care and diligence (proportioned to the danger of the service) in the selection of competent servants and safe machinery and appliances, and is liable for his own negligence in these respects. Cleveland, etc., R. R. Co. v. Keary, 3 Ohio, 201; Mad River, etc., R. R. Co. v. Barber, 5 id. 541; Ill. Cent. R. R. Co. v. Welch, 52 Ill. 183; Chicago, etc., R. R. Co. v. Sweet, 45 id. 197; Harrison v. Cent. R. R. Co., 2 Vroom, 293; Warner v. Erie R. R. Co., 39 N.Y. 468; Laning v. N. Y. C. R. R. Co., 49 id. 521; Greenleaf v. Ill. Cent. R. R. Co., 29 Iowa, 14.

It is under this rule that the plaintiff claims to recover. In such a case, however, the defect must be known to the master or such as should have been known to him as a prudent man having a due regard to the safety of his employees. Wright v. N. Y. Cent. R. R. Co., 25 N.Y. 562; Greenleaf v. Ill. Cent. R. R. Co., 29 Iowa, 14; Jones v. Yeager, 2 Dill. C. C. R. 64.

The evidence disclosed that about a week prior to the accident the plaintiff notified A. C. Harris, assistant superintendent of the road, of the bad condition of the roadway at the point where the accident occurred. That A. C. Harris was assistant superintendent; 'that he was running the road in the absence of Mr. Sickels;' that he 'looked after the interests of the road;' that in the absence of the roadmaster the plaintiff had reported to him other defects in the road-bed, which he had repaired, is all that the record discloses respecting his powers and duties as an employee of the company. We think the plaintiff would have done well to have shown more fully the powers and duties of this assistant superintendent. However, as other defects in the roadway had been reported to him, and had been repaired by him, the jury might fairly presume that the repair of the road was among his duties, and say that the defect was reported by the appellee to the proper employee of the company.

Corporations, necessarily, act through agents, and it may be said, generally, that the negligence of an officer of the company to whom is committed any particular branch of its business is the negligence of the company.

The repair of the road seems to have been under the supervision of this assistant superintendent; herein he represented the company, and his negligence in respect to defects, which, within the scope of his authority, it was his province to repair, is to be attributed to the company as its personal negligence, otherwise a corporation as acting alone through its general officers would not be chargeable in any case. Shearman & Redfield on Negligence, s 89; Cleveland, etc., R. R. Co. v. Keary, 3 Ohio St. 201; Illinois Cent. R. R. Co. v. Welch, 52 Ill. 183; Patterson v. P. & C. R. Co., 76 Pa. 389; Clarke v. Holmes, 7 H. & N. 9640.

In this view the appellee insists that the negligence from which the injury resulted was the negligence of the company. Equally in another view, independent of the question of notice to the superintendent, the jury may have found the negligence that of the defendant, to wit: that it was the duty of the defendant to use reasonable diligence to keep the roadway in proper repair, and that the condition of the roadway was of such a character, and for such a length of time, that the defendant knew of it, or should have known of it.

It is immaterial which view be taken, as either involves the same result. It does not appear but that the road was well constructed in the first instance. The evidence is to the effect that it had been out of repair from two to six weeks, and the inference is that prior to that time it was in repair. Aside from this, the law presumes that the master had done his duty in this respect. Wood's Master & Servant, s 346.

The plaintiff had been in the employment of the company as conductor for about five months prior to the accident, and the presumption is that at the date of the employment the track was in repair. Hence we may say: 1. That the negligence of the company was not in a failure to furnish a proper roadway in the first instance, but in a failure to keep it in repair. 2. The plaintiff did not originally contract with reference to the risks incident to the condition of the roadway at the time of the accident. Conceding, then, the negligence of the company in failing to keep the roadway in repair, we are confronted by the fact, indisputably established by the testimony of the appellee himself, that he had full knowledge of the defective condition of the roadway and continued the service. The general rule is, that under such circumstances the servant cannot recover. When he knows of the defect, and continues the service, he is deemed to have assumed the risks, and the maxim is-volenti non fit injuria. McGatrick v. Watson, 4 Ohio, 566; Ill Cent. R. R. Co. v....