Cules v. Northern P. Ry. Co.

• Decision Date: 10 January 1919
• Docket Number: 14998.
• Citation: 105 Wash. 281,177 P. 830
• Court: Washington Supreme Court
• Parties: CULES v. NORTHERN PAC. RY. CO.

177 P. 830

105 Wash. 281

CULES v. NORTHERN PAC. RY. CO.

No. 14998.

Supreme Court of Washington

January 10, 1919

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Gust Cules against the Northern Pacific Railway Company. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

George H. Rummens and Frank E. Green, both of Seattle, for appellant.

C. H Winders, of Seattle, for respondent.

FULLERTON J.

The appellant, a track laborer in the employ of the respondent received personal injuries while engaged with other workmen in loading steel rails upon a flat car. It is conceded that the respondent was a common carrier of interstate commerce by railroad, and that the work in which the appellant was engaged was in the prosecution of the carrier's business as such an interstate carrier. The appellant brought this action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) to recover for his injuries. At the trial of the case at the close of his evidence in chief the respondent interposed a challenge to its legal sufficiency, which challenge the trial court sustained, entering a judgment dismissing the action. The appeal is from this judgment; the question presented being the sufficiency of the evidence to make a case for the jury.

While the witnesses vary somewhat in the details of their testimony, there is no substantial conflict between them as to the manner and cause of the accident giving rise to the injury. The process of loading the rails was this: Skids were inclined from the ground to the top of the car. A rail would then be moved from the pile in which it was located to the foot of the skid, when the workmen would take hold of it with their hands and slide it on the skids to within two or three inches of the top, where a pause would be made. This pause was for the purpose of obtaining concerted action in the final push which landed the rail on the car; it being desirable, if not necessary to the safety of the workmen that the rail be pushed over the end of the skids onto the car at practically the same moment. Concert of action for the final push was obtained by the use of signals given by one of the workmen selected for the purpose. The signals were two in number, the one a warning signal for the workmen to get into position for the final push, and the second one for the concerted push which placed the rail over. At the time of the accident the appellant was stationed at the extreme left of the group of workmen and beyond the skid on that side. When the rail then being raised was near the top of the skids, the workmen stopped its progress to await the signal from the workmen in charge. The preliminary signal was given, when the workmen on the end of the rail opposite the appellant, without waiting for the second signal, pushed their end of the rail over onto the car. This act caused the rail to turn over, and caused the appellant's end to slide backward upon the skid next to him. In so sliding the third finger of the appellant's right hand was caught between the rail and the skid, and cut off at the second joint.

There is some evidence in the record to the effect that occasionally when the final signal was given the workmen at one end of the rail would push that end of the rail over the end of the skid ahead of the workmen at the other end, but it was not in evidence that this fact ever resulted in injury or was liable to cause injury to the workmen on the other end. Neither was there any evidence that it was customary or usual for one side to push the rail over on the giving of the first signal, or any evidence that such a thing had occurred in the loading of this car, other than in the instance in which the appellant was injured.

The trial judge, in sustaining the challenge to the sufficiency of the evidence, rested his conclusion on the decisions of this court in the cases of Anderson v. Oregon R. R. & Nav. Co., 28 Wash. 467, 68 P. 863, and Swanson v. Oregon-Washington R. & Nav. Co., 92 Wash. 423, 159 P. 379, remarking that he was unable to distinguish them from the case at bar. But these cases, it seems to us, while similar in their facts to the case under consideration, presented entirely different questions. The first was a common-law action for personal injuries, brought prior to the enactment of the federal Employers' Liability Act, in which the fellow-servant doctrine was in full force and effect. The injured plaintiff sought to escape the fellow-servant rule by contending: First, that the common employer undertook to superintend the work, and that his injury was the result of a negligent performance of the undertaking; and, second, that the work was of such a complicated and dangerous character as to make it the nondelegable duty of the common employer to superintend it, and hence his liability if the injury was the result of negligence or want of proper superintendence of the work, even though the employer did not undertake to superintend it. The court denied these contentions, holding that the injury was the result of negligence on the part of a fellow servant for which the employer was not liable. The second case, though brought under the federal act, was held not to fall within it. While facts were alleged tending to show that the employer was engaged in interstate commerce and that the injury was received while the injured party was employed therein because of the negligence of a fellow servant, the court dismissed this branch of the case with the remark that there was no evidence to sustain it, discussing only the ground of complaint that the injured workman had not been sufficiently warned of the dangers attendant upon the work. Plainly, therefore, the cases are not decisive of the questions presented by the present record. These questions are two, namely: Was the appellant's injury the result of actionable negligence on the part of his fellow servants? and, if so, is the common employer liable under the federal Employers' Liability Act to answer for the injury? neither of which was present in the cited cases.

Passing, then, to the first of the questions suggested, we think it clear that the injury was the result of a negligent act on the part of the appellant's coemployé. The work in which the workmen were engaged was not work which could be performed by the workmen acting singly. The rails could not be so placed upon the car. Concert of action was thus not only necessary for the successful performance of the work, but was necessary, owing to the cumbersome nature of the material being loaded, to secure the safety of the workmen engaged in it. When, therefore, the men agreed upon a line of action and proceeded with the work in pursuance of the agreement, any departure therefrom by any number of the workmen would be a negligent act, whether willfully or heedlessly performed, giving a workman injured thereby a right of action against them to recover for such injury; this on the principle that they failed to exercise that degree of care which ordinary prudence required of them under the given circumstances.

It is perhaps unnecessary to cite cases in support of the foregoing conclusion, but acts of a coworkman similar to the act in question were held to be negligent in Cherpeski v. Great Northern R. Co., 128 Minn. 360, 150 N.W. 1091, Janssen v. Great Northern R. Co., 109 Minn. 285, 123 N.W. 664, and Meo v. Chicago & N.W. R. Co., 138 Wis. 340, 120 N.W. 344, and inferentially so held in Truesdell v. Chesapeake & O. R. Co., 159 Ky. 718, 169 S.W. 471.

The liability of the common employer to answer for the injury depends upon the effect that is given to the federal Employers' Liability Act. The applicable provisions are sections 1, 3, and 4 thereof. These read as follows:

'Sec. 1. That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employés; * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

'Sec. 3. That in all actions hereafter

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