Garrahy v. Kansas City, St. J. & C.B.R. Co.

• Decision Date: 03 October 1885
• Citation: 25 F. 258
• Court: U.S. District Court — District of Kansas
• Parties: GARRAHY v. KANSAS CITY, ST. J. & C.B.R. CO. [1]

25 F. 258

GARRAHY v. KANSAS CITY, ST. J. & C.B.R. CO. ^[1]

United States Circuit Court, D. Kansas.

October 3, 1885

Byron Sherry and Thomas P. Fenton, for plaintiff.

B. F Stringfellow and Strong & Mossman, for defendant.

MILLER Justice.

This case was tried before the court and a jury at the June term 1885, at Leavenworth, and a verdict rendered for plaintiff. The defendant filed a petition for a new trial under section 987 of the Revised Statutes, and the printed argument of counsel having been submitted to me and duly considered, I am of opinion that the motion must be overruled.

The action was brought to recover from the railroad company compensation for an injury received by plaintiff in consequence of being struck by a car of the company in what is called the 'yard.' This yard appears to be a place in which the cars and locomotives of the company are placed and used on many tracks connected with a car-house. The plaintiff was engaged, with half a dozen other men, under the control of a foreman, in taking up and relaying one of the tracks in this yard. A switch-engine usually employed in transferring cars from one track to another in this yard, and from one place to another, with several hands, including fireman and engineer, under the control of another manager or conductor, struck the defendant while engaged in the work of replacing the rails of a track, and inflicted the injury for which the verdict was rendered.

It was insisted by the defendant at the trial, and the court was asked to instruct the jury, that the plaintiff and the man in charge of the engine were servants and co-employes of the railroad company in the sense of the rule of laws which exempts the company from liability to one such servant for the injuries arising from the negligence or want of care of the other. The court declined to do this, but, instead of it charged the jury on that point as follows:

'There is a principle of law that where one man in the employment of another is injured by the carelessness of a third man, who is also employed by the same man, that the common employer is not responsible for the carelessness of the one who injured the other. There is that general principle.

It is liable to a great many exceptions, such as that they must be in the same common employment. I say to you, and relieve you of all trouble about that, that these men, the plaintiff and others, were not in the common employment of the railroad company with the party who had charge of the cars that injured the plaintiff; so that is out of your way.'

To this charge the defendant excepts, and relies mainly on this exception to obtain a new trial. The question thus presented is one which has been much considered of late in the courts of last resort in the states, and much discussed at the bar in these and in inferior courts. There is no unanimity in the decisions of the courts nor in opinion of the profession. After re-examining the matter, as I have done, in the light of these decisions and of sound principle, to the best of my ability to understand what that may be in this connection, I remain of the opinion that a common hand engaged in the business of distributing iron rails along the side of a track, to be laid in place of other rails removed from that track, and under the control, with six or eight other men, of a boss or foreman, is not in the same employment as a man controlling and managing a switch-engine not used in carrying these rails, but in moving and transferring from one place to another cars not engaged in the business of relaying said track. And this, in my personal judgment, as a matter of sound principle, is also the necessary result of the latest decision of the supreme court of the United States on the same subject in the case of Chicago, M. & St. P. Ry. Co. v. Ross, 112 U.S. 377; S.C. 5 S.Ct. 184. The length of time that case was held under consideration by the court, and the ultimate dissent of several of its members, show the serious attention it received, and by it I am governed.

Other matters are suggested as grounds of a new trial; but I am satisfied that in regard to them the court committed no error to the prejudice of defendant.

Let an order be entered overruling the motion for a new trial.

NOTE.

Risks of Employment-- negligence of Fellow and Superior Servants.

1. RISKS OF EMPLOYMENT. When a person enters into the service of another he assumes all the ordinary risks incident to the employment, Woodworth v. St. Paul, M. & M. Ry. Co., 18 F. 282; Mentzer v. Armour, Id. 373; Sunney v. Holt, 15 F. 880; Howland v. Milwaukee, L.S. & W. Ry. Co., 11 N.W. 529; Herbert v. Northern Pac. R. Co., 13 N.W. 349; Piquegno v. Chicago & G.T.R. Co., 17 N.W. 232; Richards v. Rough, 18 N.W. 785; Madden v. Minneapolis & St. L. Ry. Co., 20 N.W. 317; Hannibal & St. J.R. Co. v. Fox, 3 Pac.Rep. 320; Leary v. Boston & A.R. Co., 2 N.E.Rep. 115; and the employer agrees, by implication of law, not to subject him to extraordinary or unusual peril, and that he will furnish and maintain in repair suitable machinery, reasonably safe, with which to perform this work, Gravelle v. Minneapolis & St. L. Ry. Co., 10 F. 711; Armour v. Hahn, 4 Sup.Ct.Rep. 433; Thompson v. Drymala, 1 N.W.Rep. 255; Thompson v. Hermann, 3 N.W.Rep. 579; Braun v. Chicago, R.I. & Pac. R. Co., 6 N.W. 5; Herbert v. Northern Pac. R. Co., 13 N.W. 349; Moran v. Harris, 19 N.W. 278; Solomon R. Co. v. Jones, 2 Pac.Rep. 657; McGee v. Boston Cordage Co., 1 N.E.Rep. 745; Bowers v. Union Pac. R. Co., 7 Pac.Rep. 251; Cunningham v. Union Pac. Ry. Co., Id. 795; Bean v. Oceanic Steam Nav. Co., 24 F. 124; but he does not covenant to furnish machinery and appliances that are safe beyond a contingency, nor that they are as safe as those of others using the same kind. Richards v. Rough, 18 N.W. 785; Sjogren v. Hall, Id. 812; Batterson v. Chicago & G.T.R. Co., Id. 584. The employe takes upon himself those risks, and only those, that are usually incident to the employment engaged in, and in absence of statute the negligence of a fellow-servant is a risk assumed by the employe as a risk of the business or employment. Thompson v. Chicago, M. & St. P. Ry. Co., 14 F. 564; Totten v. Pennsylvania R. Co., 11 F. 564. It has been held that a master is liable in damages for taking an inexperienced employe into danger without warning, Parkhurst v. Johnson, 15 N.W. 107; but infancy or ignorance of the employe does not, of itself, give him cause of action against his employer for injury resulting from setting him at dangerous work, if it appears that the employe was of average intelligence, and that his duties were explained to him when he entered upon the employment. McGinnis v. Canada Southern Bridge Co., 13 N.W. 819. Yet where an employe is put at other and more dangerous employment than he undertook to do, and is injured, the master will be liable. Jones v. Lake Shore & M.S. Ry. Co., 14 N.W. 551. Where a servant, knowing the hazard of the employment as the business is conducted, is injured while engaged therein, he cannot recover merely on the ground that there was a safer way of conducting the business, the adoption of which would have prevented the injury. Naylor v. Chicago & N.W. Ry. Co., 11 N.W. 24; Lopez v. Central Arizona Min. Co., 2 Pac.Rep. 748; Stafford v. Chicago, B. & Q.R. Co., 2 N.E.Rep. 185.

A railroad employe does not necessarily assume the risks incident to the use of unsafe machinery furnished him because he knows its character and condition; but it is necessary that he understood, or by exercise of common observation ought to have understood, the risks to which he was exposed by its use. Russell v. Minneapolis & St. L. Ry. Co., 20 N.W. 147; Cook v. St. Paul, M. & M. Ry. Co., 24 N.W. 311. And in a recent case it is said that while the servant assumes the ordinary risks of his employment, and, as a general rule, such ordinary risks as he may knowingly and voluntarily see fit to encounter, he does not stand upon the same footing with the master as respects the matter of care inspecting and investigating the risks to which he may be exposed. He has a right to presume that the master will do his duty in this respect, so that, when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders without being chargeable with contributory negligence or the assumption of the risk of so doing, provided he does not rashly and deliberately expose himself to unnecessary and unreasonable risks which he knows and appreciates. Cook v. St. Paul, M. & M. Ry. Co., 24 N.W. 311.

(1) Ordinary Risks. It may be said to be well settled that one who voluntarily enters the service of another takes upon himself the natural and ordinary risks incident to such employment, Smith v. Railway Co., 69 Mo. 38; Porter v. Railway Co., 60 Mo. 160; Coombs v Cordage Co., 102 Mass. 572; Perry v. Marsh, 25 Ala. 659; Gibson v. Erie Ry. Co., 63 N.Y. 449; Toledo, etc., Ry. Co. v. Black, 88 Ill. 112; Gibson v. Pacific R. Co., 46 Mo. 163; Wonder v. Baltimore, etc., R. Co., 32 Md. 411; Strahlendorf v. Rosenthal, 30 Wis. 674; as well as those growing out of patent or known defects. De Forest v. Jewett, 23 Hun, 490. In the case of Blake v. Railroad Co., 10 Reporter, 426, it was held by the supreme court of Maine that the servant undertakes or contracts against all the natural or ordinary risks of the employment, including that of the negligence of fellow-servants, and a number of cases uphold the same doctrine. Beaulieu v. Portland Co., 48 Me. 295; Lawler v. Androscoggin R. Co., 62 Me. 467; Warner v. Erie Ry. Co., 39 N.Y. 469; Zeigler v. Day, 123 Mass. 152. A number of others hold that this is true only where the negligent servant is not his superior in authority. ...