Gila Valley, G. & N. R. Co. v. Lyon

• Citation: 71 P. 957,8 Ariz. 118
• Decision Date: 20 March 1903
• Docket Number: Civil 797
• Parties: GILA VALLEY, GLOBE, AND NORTHERN RAILROAD COMPANY, Defendant and Appellant, v. A. J. LYON, Plaintiff and Appellee
• Court: Arizona Supreme Court

71 P. 957

8 Ariz. 118

GILA VALLEY, GLOBE, AND NORTHERN RAILROAD COMPANY, Defendant and Appellant, v. A. J. LYON, Plaintiff and Appellee

Civil No. 797

Supreme Court of Arizona

March 20, 1903

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. George R. Davis Judge. Reversed.

The facts are stated in the opinion.

Frank W. Burnett, for Appellant.

The master's duty to furnish a reasonably safe place for his employees to work in is fully performed when the appliances furnished are reasonably safe when used with ordinary skill and care; and no liability exists if under such circumstances an injury results from an improper use of the appliances by plaintiff or his fellow-servants. Randall v. Baltimore etc. R.R. Co., 109 U.S. 478, 3 S.Ct. 322, 27 L.Ed. 1003; Morris v. Duluth S.S. Co., 108 F. 749, 47 C.C.A 661; Trewatha v. Buchanan etc., Min. Co., 96 Cal 494, 28 P. 571, 31 P. 561; Kansas etc. Coal Co. v Reid, 85 F. 915, 29 C.C.A. 475; Cincinnati etc. Ry. Co. v. Mealer, 50 F. 727, 1 C.C.A. 633; Jones v. Granite Mills, 126 Mass. 84, 30 Am. Rep. 661; Hussey v. Coger, 112 N.Y. 614, 8 Am. St. Rep. 787, 20 N.E. 556, 3 L.R.A. 559; Hogan v. Smith, 125 N.Y. 774, 26 N.E. 742; Cleveland etc. Ry. Co. v. Brown, 73 F. 970, 20 C.C.A. 147; Callaway v. Allen, 64 F. 297, 12 C.C.A. 114.

The master is not liable if the proximate cause of the injury was the fault of another, or of a fellow-servant with plaintiff. Evansville R.R. Co. v. Henderson, 134 Ind. 636, 33 N.E. 1021; Allen v. New Gas Co., L.R. 1 Exch. Div. 251; Conger v. Flint etc. R.R. Co., 86 Mich. 76, 48 N.W. 695; Trewatha v. Buchanan etc. Min. Co., 96 Cal. 494, 28 P. 571, 31 P. 561; Course v. New York etc. Ry. Co., 49 Hun, 609, 2 N.Y.S. 312; Cincinnati etc. Ry. Co. v. Mealer, 50 F. 725, 1 C.C.A. 633; Morris v. Duluth S.S. Co., 108 F. 749, 47 C.C.A. 661; Norfolk and Western Ry Co. v. Brown, 91 Va. 668, 22 S.E. 496; Bull v. Mobile etc. Ry. Co., 67 Ala. 206; Rose v. Gulf etc. Ry. Co. (Tex.), 17 S.W. 789; New York etc. R.R. Co. v. Perriguey, 138 Ind. 414, 34 N.E. 233, 37 N.E. 976; St. Louis etc. R.R. Co. v. McClain, 80 Tex. 85, 15 S.W. 789; Union Pac. Ry. Co. v. Callaghan, 56 F. 988, 6 C.C.A. 205; Vizelich v. Southern Pacific Co., 126 Cal. 587, 59 P. 129.

Falvey & Davis, for Appellee.

"A railroad must use diligence and care to make and promulgate rules which, if faithfully observed, will give reasonable protection to its employees." Bailey on Master and Servant, p. 42; Abel v. President etc. Co., 103 N.Y. 581, 57 Am. Rep. 773, 9 N.E. 325; Rex v. Pullman Palace Car Co., 2 Marv. (Del.) 337, 43 A. 247.

Upon the point that the negligence of the company combined with the negligence of fellow-servants renders the company liable, see Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 267; Morrisey v. Hughes, 65 Vt. 553, 27 A. 205; Elmer v. Locke, 135 Mass. 575.

OPINION

KENT, C.J.

-- This was an action brought by the appellee for damages for injuries resulting in the death of her son, alleged to have been brought about by the negligence of the defendant railroad company, the appellant in this court. The case was tried before the court and a jury.

The facts adduced upon the trial showed that the defendant, a railroad company, to accommodate the business of a certain mine near Globe, in this territory, built a side-track several hundred yards long, running from the main track for some distance up a steep grade, and near the top of the grade branching into two spurs. At the top of the grade, and where the ground began to be level, these tracks passed under a shed, a structural part of the mine company's plant, for about thirty feet. On ordinary freight box cars passing under the shed brakemen were compelled to stoop or sit down because of the nearness of the top of the car to the roof of the shed. Beyond the shed the tracks were extended upon a trestle about one hundred and ten feet long, and designed for the placing of cars for convenience of loading and unloading at the mine. At the end of this trestle the tracks stopped on the edge of a steep ravine or canon. In order to place and leave cars on this spur or side track, there being but one connection with the main track, the engine could not go in in advance, but the cars had to be pushed up this spur, and, as the incline was steep leading from the main track, with a small engine some speed was at first required in order to reach the top of the incline. At the place where the steep grade ceased, the shed referred to spanned the track in such a way as to cut off the view between those on the engine and the far end of a train pushed up the incline on the side track. The roof of the shed was so low as to make it difficult to use hand-brakes on the cars while passing through the shed. There was no obstruction placed at the end of the track and trestle which would prevent the cars from going beyond the track and falling into the ravine, except a piece of pine timber of a size twelve by twelve inches, bolted at each end, and screwed to the ties, rising to a height above the rails of ten or twelve inches. The object of this timber was not to serve the purpose of what is known as a "bumping post," and the timber was not sufficient to arrest the motion of cars propelled at even a comparatively slow rate of speed, but was placed there primarily to prevent cars that were stationary on the track, and that might become loosened by accident or otherwise, from running off the track at the end, and was sufficient for that purpose.

The decedent was employed by the defendant company as a brakeman, and had been in its service for about twelve days when he met his death, and during that time he had been frequently on the premises in question, engaged in his duties as a brakeman, but it was not shown that prior thereto he had had experience in the duties required of him. Under ordinary circumstances, in switching cars onto this side track, it was proper and usual to keep the engine attached to the cars until they were stopped at the desired position. At the time of the accident in question, instead of adopting the usual method, the conductor of the freight train upon which the decedent was employed adopted the unusual method, while the train was in full motion, of cutting off two cars from the rest of the train, which was being pushed by the locomotive, intending to let them go in on the side track by their own momentum, and, with the aid of the deceased, who was on the front car, stop them by means of the hand-brakes when they had attained the desired position. When the cars were cut off the train, they were going at a rate of speed estimated by some witnesses as great as six miles an hour. After they had passed through the shed they were still going at such a rate of speed that the deceased and the conductor, who was on the last car, were unable to control them, and the forward car, upon which the deceased was riding, knocked the pine barrier from its position, and was precipitated with the deceased into the ravine, and the deceased was immediately killed.

There was nothing to show that the deceased was aware of the purpose of the conductor to cut the cars loose from the train, or that, although the deceased knew the premises, he had had sufficient experience either to be aware of the danger of the premises, or to be chargeable with the knowledge of the dangers as a matter of law. Testimony was offered by the defendant to show that the premises were reasonably safe when used in a proper manner, and by the plaintiff to show that they were dangerous, not only when used in a reckless manner, but dangerous even when the work was performed with due care. The evidence, however, tended to show that if the cars had been put in on the side track in the usual manner -- that is, by being attached to the engine with the use of air-brakes until the cars had attained the position desired -- the accident and injury would not have occurred; and that the accident was brought about by the method adopted by the conductor of the train in cutting off the end cars and sending them upon the side track without the control of the engine. It appeared, also, that this unusual method had been resorted to once or twice before by the conductor, but that the ordinary custom, known to the conductor, who was an experienced man, was to "spot" the cars by means of the engine.

The court denied the motion of the defendant to instruct the jury to return a verdict for the defendant, and the jury returned a verdict for the plaintiff in the sum of five thousand dollars.

The first error assigned is that the court, at the close of the evidence, should have directed a verdict for the defendant and it is urged that the case comes within the rule that if the evidence, with all the inferences that the jury can justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such verdict if returned must be set aside, then it is the duty of the court to direct a verdict for the defendant. Randall v. Baltimore etc. R.R., 109 U.S. 478, 3 S.Ct. 322, 27 L.Ed. 1003. Upon the evidence in this case, however, we cannot say that the jury would not have been justified in returning a verdict for the plaintiff on the ground that the premises provided by the master for the work to be done were not reasonably safe, if the master's negligence in this respect contributed to the accident. The testimony as to the character of the premises is not so conclusive or undisputed as to make it a question of law for the court, rather than a question of fact for the jury, to decide whether the premises were reasonably safe, and, if unsafe, whether the negligence of the master in that respect contributed to the injury. We...