Gates v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 15 January 1892
• Citation: 50 N.W. 907,2 S.D. 422
• Parties: Gates v. Chicago, M. & St. P. Ry. Co. [1]
• Court: South Dakota Supreme Court

50 N.W. 907

2 S.D. 422

Gates v. Chicago, M. & St. P. Ry. Co. ^[1]

Supreme Court of South Dakota

January 15, 1892

Syllabus by the Court.

1. The law as between master and servant not only imposes upon the employer the duty of using reasonable care in providing safe and proper machinery, but also reasonable care in placing the same under the control of a competent servant or employe charged with the duty of properly attending to the same, and seeing that it is properly used for the safety of employes and, when not in use, is properly and safely secured. And not only must the employer use reasonable care in selecting a competent servant to take charge of the machinery, but the same care must be exercised in continuing him in the service otherwise the employer will become responsible for his care and skill.

2. There was evidence in this case tending to prove that a derrick had been erected by the company on the line of its side track, which, when not properly secured when not in use was dangerous to employes of the company by reason of the arm of the derrick--to which was suspended a heavy iron hook pulley, and chain--swinging over the track. Held, that it was the duty of defendant to place such machinery under the control of a competent servant or employe charged with the duty of seeing that it was properly secured when not in use, and, it not being shown in this case that the machinery in question was so placed in charge of any such servant or employe, there was evidence from which a jury might properly find negligence on the part of the defendant in causing the injury where a brakeman of the company, while on duty, and without fault on his part, was injured by reason of the derrick, not being properly fastened, swinging over the track.

3. Where a derrick had been erected by defendant on the line of its side track near a station,--in July,--which derrick was used by shippers, and was sometimes secured after being used and sometimes left unfastened, from that time to the time of the accident, held, that the defendant must be presumed to have known the manner of its use and the care used in securing it when not in use, and that a special finding that neither the defendant nor any of its servants knew it was unfastened at the time of the accident was an immaterial finding. Held, further, that a special inquiry, "How long had it been unfastened at the time of the accident?" which was answered, "Unknown," by the jury was also immaterial under the facts shown in this case.

4. Special findings control the general verdict only when they are so inconsistent that they cannot stand together. Held, in this case, that the special findings are not inconsistent with the general verdict, the evidence tending to show that the negligence of the defendant was in erecting machinery on the line of its side track that, when not properly secured, was dangerous to its employes, without placing the same under the control of a competent servant or employe charged with the duty of seeing that it was so properly secured when not in use.

5. The negligence of a fellow-servant that will relieve the master from liability for an injury to an employe is the omission of such fellow-servant to perform some act which it is made his duty to perform, or the doing of some act in the course of his duties that causes the injury.

Appeal from circuit court, Brown county.

Action by Charles P. Gates against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for personal injuries caused by defendant's negligence. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

John H. Perry, (H. H. Field, of counsel,) for appellant.

Taubman & Potter, for respondent.

CORSON J.

This was an action brought by plaintiff, a brakeman in the employ of defendant, to recover damages for injuries received by him while in the performance of his duties as such brakeman. Verdict and judgment for plaintiff. Defendant appeals.

The accident resulting in the injury complained of occurred in October, 1889, at Eureka, in this state, and was caused by an iron hook suspended from the arm of a derrick constructed by the defendant. The cause of the injury and the negligence of the defendant are stated in the complaint as follows: "That on or about said 4th day of October, 1889, while so following his said usual occupation as brakeman, and while on top of a freight train at said station of Eureka, McPherson county, South Dakota, and without any negligence on his part, and while exercising due, reasonable, and ordinary care and skill as such servant, and while stepping from one car to another, as was then necessary, in the direction in which said train was then moving, and against a violent wind, this plaintiff was struck on the head and dangerously injured by the large, heavy, and dangerous iron hook and pulley which was attached to the end of the arm or projection of the said derrick then upon the said right of way by the side of said railway track, and which was the property of and used by the defendant in conducting its business of loading and unloading freight shipped over its said railway. That the said derrick was negligently constructed, controlled, and operated by said defendant, and it also negligently permitted the arm or projection of the said derrick to swing around, so that the end of the said arm or projection was midway over said cars, to which said end was attached a chain, which was suspended therefrom, at the end of which was a large iron pulley and iron hook suspended in the air about five feet above said cars upon which this plaintiff was then and there carefully performing the service required by his said employment." The answer denied all negligence on the part of the defendant. The cause was tried by a jury, which found a general verdict, and also found upon particular questions of fact submitted to them by the court. These special findings are as follows: "(1) Question. Was the derrick unfastened at the time of the accident? Answer. Yes. (2) Q. How long had it been unfastened at the time of the accident? A. Unknown. (3) Q. Did any employe of the defendant know that the derrick was unfastened at the time of the accident? If so, state what employe it was? A. No. (4) Q. Was said derrick provided with proper means of fastening it at and prior to the time of the accident? A. No. (5) Q. Did the plaintiff know, or in the exercise of ordinary care could he have known, that said derrick was out of place at the time of the accident? A. No."

Numerous errors are assigned in the record, but as only two are relied on by counsel for appellant, the others will not be noticed. These two are as follows: "First. There is no evidence of negligence on the part of defendant or its employes which caused or contributed to the accident. Second. The defendant is not liable, under section 3753 of the Compiled Laws of 1889, because the negligence, if any, was that of a person employed in the same general business with the plaintiff." The learned counsel for the appellant contend that special finding No. 4 is contrary to the undisputed evidence, and should therefore have been set aside or the facts found by the court. That finding, it will be noticed, is that the derrick was not provided with proper means of fastening at or prior to the time of the accident. If this finding is to be strictly construed to mean simply the instrument provided for fastening it in its proper position when not in use, we think the contention of counsel is correct. The testimony of Drum, who erected the derrick for the defendant, is clear and positive that the iron pin provided was the proper and usual fastening, and his evidence is not contradicted. But if the term "means" is to be construed as including the agencies provided for fastening the derrick when not in use, as well as the instrument to be used, then the finding of the jury seems to be supported by the evidence; and this is probably the view taken of the question by the jury. But, in our view of the case, we do not regard the finding as very material, and therefore pass to the question whether or not there is evidence of negligence sufficient to sustain the general verdict. Assuming that the derrick was properly constructed, and provided with a suitable appliance for fastening the same, a further duty was imposed upon the defendant of using reasonable care in placing the machinery under the control of a competent servant or employe charged with the duty of seeing that it was properly used and properly secured when not in use. The law as between master and servant not only imposes upon the employer the duty of using reasonable care in providing safe and proper machinery, but also reasonable care in placing the same under the control of a competent servant or employe charged with the duty of properly attending to the same, and seeing that it is properly used for the safety of employes, and, when not in use, is properly and safely secured. And not only must the employer use reasonable care in selecting a competent servant to take charge of the machinery, but the same care must be exercised in continuing him in the service; otherwise the employer will become responsible for his care and skill. Thomp. Neg. p. 984; Shear. & R. Neg. §§ 35, 197, 183;Holden v. Railroad Co., 129 Mass. 268.

The evidence in this case fails to show that the defendant placed said derrick under the control of any servant or employe of the company charged with the duty of seeing that the same was safely fastened when not in use. The only evidence upon this subject was that of Drum, who constructed the derrick, and Guhin, the station agent. Drum testified that after completing the derrick he instructed Guhin in the manner of using and fastening it, and also gave...