Fraker v. St. Paul, Minneapolis & Manitoba Railway Company
| Decision Date | 24 April 1884 |
| Citation | 19 N.W. 349,32 Minn. 54 |
| Parties | Charles A. Fraker v. St. Paul, Minneapolis & Manitoba Railway Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial after verdict of $ 1,000 for plaintiff.
Order reversed, and a new trial granted.
R. B Galusha and Benton & Roberts, for appellant.
Arthur M. Keith and Shaw & Cray, for respondent.
For the purposes of this appeal it must be taken as admitted that the plaintiff, at the time of the injury complained of, had been for several months in the employ of the defendant as a brakeman in the yard of the company at Minneapolis. It was his duty, in connection with an engineer, foreman, and other employes, to assist in handling and moving freight cars for different purposes, including damaged or broken cars which were required to be transferred to repair tracks in the same yard. While thus engaged with them in the course of his employment, on the day in question, in removing a damaged car, and while in the act of uncoupling it from an engine and without fault on his part, his hand was severely injured in consequence of the coupling attachment being out of repair, of which fact he was not at the time aware.
It was a matter of daily occurrence for these men to be so engaged in removing damaged cars. As to the particular car in question, it appears that it was promptly inspected by a car inspector after it was broken, and set out upon a side-track to be transferred to the repair track. The inspector at the same time caused "bad order" cards to be fastened on each side of it, in the customary way, which indicated that it was to be so removed for repairs, and the signification of which was well known and understood by the employes in the yard, including the plaintiff. It thereupon became their duty, under the direction of their foreman, to remove this car to the proper place for repairs. The plaintiff had on a previous day observed this car, and that it was so marked; but, under the circumstances in which he was ordered to uncouple it, he did not recognize or identify it. The engine had been coupled to it, and the foreman, as we must assume from the verdict, gave plaintiff the wrong signal, indicating that it was to be sent to a track which was not in the direct line or route to the repair track, and ordered the plaintiff to uncouple the car from the engine at the proper time to carry into effect such order; and the latter, not understanding that the car was on the way to the repair track, mistook its character, and failed to exercise the proper caution in the process of uncoupling it. The plaintiff's evidence warrants the inference that if he had observed the marks upon the car, -- which he did not do, being called to act quickly, -- he would have proceeded more cautiously; and so, also, if the foreman under whom he acted had given the proper signal to indicate that the car was on the way to the repair track, he would in like manner have protected himself. This foreman was acting under a yard-master, who was his superior, and the latter in turn was subject to the orders of the division superintendent of the company. It does not appear that the foreman had any other responsibility than as above indicated. The plaintiff was employed to assist him in the matter of handling cars in the yard, as well damaged or broken cars as those for ordinary service and use.
1. As respects the discharge of such duties by the parties so employed, and any risks incident thereto, including the acts and omissions of the foreman, the latter must be regarded as the co-servant of plaintiff. Brown v. Winona & St. Peter R. Co., 27 Minn. 162, 6 N.W. 484; McCosker v. Long Island R. Co., 84 N.Y. 77; Lawler v. Androscoggin R. Co., 62 Me. 463; Weger v. Pennsylvania R. Co., 55 Pa. 460; Brown v. M. & St. L. Ry. Co., 31 Minn. 553. The foreman was not deputed to act as the authoritative representative of the master, as superintendent or middle-man, vested with a discretion to control and manage a division or department of the business. Wharton on Negligence, (2d Ed.) § 235. And therefore, as to fellow-servants, his negligence in the discharge of such duties is not attributable to the master. We think, therefore, the court erred in refusing defendant's ninth request to instruct the jury "that the defendant was not liable for any negligence of its servants in the manner of removing the car, nor for any directions given by any one of them as to the manner of removal." So, also, we think the court erred in assuming, in the second and third instructions, given at plaintiff's request, that the foreman, in the course of his employment in the matter of removing and handling damaged cars, was representing the master, and engaged in the performance of duties pertaining to the master, and not to a servant. The duty of handling such cars, after inspection, belonged to these men as the servants of the company in their particular department of duty, irrespective of the particular grade of employment of each in the division of labor necessarily incident to the service. And it was not a duty or service which was being performed by the foreman as master as respects the question of liability to other employes. In other words, it was a servant's and not a master's duty he was discharging.
2. It is the duty of the master to use reasonable diligence in the employment of servants to secure such as are competent and reliable, and to provide them safe and suitable machinery appliances, and equipment, and also to establish and promulgate suitable and needful regulations for the safe and proper conduct of his business, having reference to its risks and exigencies. These are duties which belong to the master as such, and in the performance of which he is bound to exercise such diligence for the protection of his employes; and if they are performed through an agent, of whatever grade, he must be deemed to represent the...
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