Herbert v. Northern Pac. R. Co.

Decision Date25 July 1882
Citation13 N.W. 349,3 Dakota 38
PartiesHerbert v. Northern Pacific R. Co.
CourtNorth Dakota Supreme Court

Appeal from Burleigh county.

W. P Clough, for appellant. Thos. Wilson and Wilson & Ball, for respondent.


This action was brought to recover damages of the defendant company for causing a fatal injury to the plaintiff's leg, necessarily requiring amputation. It appears from the undisputed testimony in the case, that on the twenty-fourth day of October, 1879, the plaintiff was in the employ of the defendant as brakeman in defendant's yard at Bismarck and as such, it was his duty, among other things, to attend, set and loosen brakes when necessary upon freight trains that came into the yard, in separating and distributing cars, under the immediate direction of the yard-master, one Gilboy; that although the plaintiff had had considerable experience as a brakeman at other places, he had worked in this yard but two days, when, coming up with some cars from the Missouri landing to the yard at Bismarck, a freight train which had come in from the east was standing upon the track. Orders were given to separate and distribute the cars, and for this purpose the switch-engine was coupled on and the work of switching commenced.

The plaintiff was ordered by the yard-master of defendant to go upon the brake and stop two certain cars, numbered 1804 and 2280, which had theretofore been kicked off (as it is termed) and propelled by steam-power upon a particular track, and were running toward some stationary cars standing on the same track; that the plaintiff, in obedience to said order ascended the ladder on the rear end of car 1804, being the hind car, and ran to the forward end and attempted to set the brake attached to said car; that said brake was out of order and could not be made to work so as to stop the said cars, and was utterly useless for that purpose; that as soon as the plaintiff discovered that the brake on said car 1804 was in bad condition and useless, he stepped onto car 2280 and took hold of the brake on said car for the purpose of braking and stopping said cars. The brake on 2280 is what is termed a "step brake," having its upper bearing of the shaft and dog and ratchet upon a shelf or step about one foot below the top or roof of the car, and the plaintiff, in attempting to set said brake, stepped down with his left foot upon said shelf or step, it being designed for that purpose, and put his foot against the dog to hold it into the ratchet, so as to make the brake effective in stopping the cars, which brought his left limb between said cars. The brake on said car 2280 was also defective and out of order, it having been worn by use, and the ratchet would not hold. That while the plaintiff's left foot was upon the step, attempting to hold the dog to the ratchet, the said cars, being still in motion, struck the stationary cars standing upon the said track.

At the time the train having said cars Nos. 1804 and 2280 attached came into the said yard at Bismarck, the said car 1804 was broken and defective in other respects than in the brake mentioned. It had met with an accident on its way from Fargo to Bismarck, by which the "dead-wood" and "draw-bar," sometimes called "bumper," had been pulled out and was then out, and the two cars had been chained together, and were so connected at the time the same were switched off as aforesaid. The two ends so chained together were the ends having the brakes, and the end of 1804 having the bumper out. That when car 2280, being forward, struck the stationary cars standing on the track as before described, by reason of car 1804 having no bumper, the two cars were forcibly driven together, and, coming in close contact, caught and crushed and injured the plainiiff's leg, from which injury amputation became necessary. There was some evidence tending to show that the plaintiff knew, or had reason and opportunity to know, of the defective condition of these cars; but the plaintiff testified on the trial that he had no such knowledge. The defendant also gave evidence upon the trial to show that it had a car repairer at its yard in Bismarck whose duty it was to repair its cars and to keep them in repair. Verdict for the plaintiff and judgment, from which defendant appeals.

The defendant alleges several errors occurring at the trial in the court below, and to which exception was duly taken, but it is not deemed of importance that all of these should be noticed, but only such as were pressed upon the attention of the court by the learned counsel in his argument of the case.

And, first, it appears that when the case was called for trial and a jury was being impaneled, one C. S. Weaver was called as a juror and sworn upon his voir dire; that after examination he was challenged for cause by plaintiff's counsel and the court sustained the challenge, to which decision of the court the defendant accepted. We need not inquire whether the examination of the jurors showed a good cause of challenge, as the question may be disposed of, so far as this appeal is concerned, on other grounds. It does not appear from the record that the defendant was prejudiced by not having this juror on the panel. The cause was tried by a competent jury. The defendant could not be restored to its rights by a new trial, as it could not have this juror impaneled again. The plaintiff, for aught that appears in this record, might have challenged this juror peremptorily. Nor does it appear that the counsel for the defendant had exhausted his peremptory challenges, or that he did all that he could to free the panel from objectionable jurors. The panel may have been finally acceptable to him. It is for the defendant to show that it was prejudiced by the decision of the court. A judgment will not be reversed unless it appears that a party's rights have been prejudiced, and as it does not appear that there was any legel objection to the jury which tried the case, the defendant has not in any legal sense suffered injury, and the court will presume nothing in favor of the party alleging error. Morrison v. Lovejoy, 6 Minn. 319, (Gil. 224;) Atlas Mining Co. v. Johnson, 23 Mich. 36.

Secondly. The defendant insists that the plaintiff cannot recover for an injury caused by the negligence of his co-employe engaged in the same general business, assuming that the evidence shows that the accident which caused the injury to plaintiff was solely from the negligence of his co-employe, viz., the car repairer or yard-master. This is stating a fundamental principle of law, and cannot be disputed, if the defendant's assumption is true. It may be granted that if the case presented in this contention is one falling within that rule of law, and not within any exception to the rule, the defendant ought to prevail. This doctrine of the exemption of the common master from liability to his servant for injuries caused by the negligence of a fellow-servant engaged in the same general employment, is stated by Chief Justice Shaw, inFarwell v. Boston & Worcester R. Co. 4 Metc. 49, as follows: "He who engages in the employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is likely to know, and against which he can as effectually guard as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any other."

In Laning v. N.Y. Cent. R. Co. 49 N.Y. 521, Folger, C. J., states the law as follows: "A master is not liable to those in his employ for injuries resulting from the negligence, carelessness, or misconduct of a fellow-servant engaged in the same general business. Nor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness, or misconduct has caused the injury. *** If they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes, the master is not liable." But the same courts declare that while the general doctrine, as thus stated, is sustained by elementary writers of high authority and by numerous adjudications of the American and English courts, there are well-defined exceptions, which, resting as they clearly do upon principles of justice, expediency, and public policy, have become too firmly established in our jurisprudence to be now disregarded or shaken. One, and perhaps the most important, of those exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exigencies of the situation require in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.

It is implied in the contract between the parties that the servant...

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