Daniels v. Union Pac. Ry. Co.

• Decision Date: 01 March 1890
• Citation: 23 P. 762,6 Utah 357
• Court: Utah Supreme Court
• Parties: WILLIAM DANIELS, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT

23 P. 762

6 Utah 357

WILLIAM DANIELS, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

March 1, 1890

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr. P L. Williams for the appellant.

Mr Arthur Brown for the respondent.

BLACKBURN J. HENDERSON, J., and ANDERSON, J., concurred.

OPINION

BLACKBURN, J.

This is a suit by a brakeman, an employe of the defendant company, for an injury to him while in the line of his duty on a train that was wrecked. He was severely injured, and permanently in one leg and one of his shoulders, so as to be unable to perform manual labor. The evidence tends to show that the train on which the plaintiff was at work as brakeman was wrecked by a broken wheel; that there was an old crack in the wheel, which could have been seen by proper inspection; and the question was fairly submitted to the jury, and they found that this was negligence in the defendant company. We think the evidence abundantly supports this finding. It was the duty of the company to furnish reasonably safe cars for the running trains, and to have them inspected with reasonable care at proper intervals; and, if an employee was injured by a neglect to perform this duty, the company is liable to him for the damage he sustained. On this branch of the subject we see no error.

The instructions, as we think, state well and fairly the law of the case, and no point is made on them in the brief of appellant's counsel; but the contention of the defendant company is that, if there was negligence, it was the negligence of the car-inspector, and he was the fellow servant of the respondent. If this contention is true, the respondent cannot recover, and this case should be reversed. As to who are fellow servants, there have been a great many and great variety of decisions, and it would serve no useful purpose to review them. However various, the decisions agree that the weight of authority is that, in order to constitute servants of one master fellow servants, within the rule respondeat superior, they must be engaged in the same line of work, be under the control of the same foreman be employed and discharged by the same head of the department in which they work; that they labor together in such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety; that they shall be at the time...