Hunn v. Michigan Cent. R. Co.

• Decision Date: 28 December 1889
• Citation: 44 N.W. 502,78 Mich. 513
• Court: Michigan Supreme Court
• Parties: HUNN v. MICHIGAN CENT. R. CO.

44 N.W. 502

78 Mich. 513

HUNN v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Jackson county.

Action by Alice M. Hunn, administratrix of the estate of George Hunn, deceased, against the Michigan Central Railroad Company, for the negligent killing of her intestate. Judgment for plaintiff. Defendant brings error.

Gibson & Parkinson and H. M Campbell, (Ashley Pond, of counsel,) for appellant.

Hammond, Barkworth & Cobb, (T. A Wilson, of counsel,) for appellee.

CHAMPLIN J.

About 3 o'clock on the morning of December 30, 1885, engine No 120, with a way-car, under the charge of W. D. Loomis as conductor, and Samuel Maitland as engineer, and George Hunn as fireman, left Bay City, going south, with orders to run wild to Rives Junction, over the Jackson, Lansing & Saginaw Railroad, leased and operated by the defendant company. On the same morning engine No. 177, without any train, was proceeding north over the same road, under the charge of Nilson Napier as conductor, Robert Mills, engineer, and Thomas Looney, fireman. Both engines were run under orders by telegraph from one Kilner, a train dispatcher of Bay City. It was the duty of Kilner, as train dispatcher, to establish a meeting point for these two engines, under a rule adopted by the defendant company which reads as follows: "Rule 133. When an order is given by telegraph for two or more trains to meet at a station, the train dispatcher must first order the green signal displayed at such meeting point by the operator and receive assurance from him that the signal has been displayed before giving orders to either train. In ordering one train to be held for another, the dispatcher will order each train held for the other." Kilner established such a meeting point at Saginaw City, and notified engine 120 of that fact, but neglected to notify engine No. 177, and gave no order to hold this engine at that point. Napier, the conductor of No. 177, reached Saginaw City, and saw the green signal, and found the order there to hold W. D. Loomis, conductor of No. 120, but no order for himself. He received his clearance, and proceeded north three or four miles, and met engine No. 120 upon a curve at about 3:20 o'clock A. M. The respective engines were running at from 10 to 12 miles an hour. The collision resulted fatally to Hunn. At the time a thick fog was prevailing, the night was dark, and the view at the curve was obstructed by houses and other objects, which prevented the approaching engines from being seen from each other a distance of from three to four car-lengths. The accident occurred within the limits of the Saginaw yards. The time-card rule, which was well known to all employes of the company, required "that trains will run carefully, and under full control, through all yards, and irregular trains must keep sharp lookout for switching engines." The plaintiff recovered a judgment in the court below, and the defendant asks its reversal upon several grounds, the principal of which are the following: "(1) The declaration was insufficient, in not setting forth with more particularity the duty of the defendant, the breach of duty which caused the accident, and the cause of the accident. (2) The only negligence proved upon the trial was that of the train dispatcher, and no recovery can be had, for the reason that his negligence was that of a fellow-servant. (3) The testimony relative to damages, and the charge of the court in reference thereto, were erroneous."

The declaration was not demurred to. It states a cause of action, and is sufficient after verdict.

The second ground above stated, if sustained, prevents a recovery in the action, and raises the most important point in the case. The court long ago announced and has steadily adhered to the doctrine that a master is not liable to a servant for injuries received through the negligence of a fellow-servant while engaged in a common employment. Railroad Co. v. Leahey, 10 Mich. 193; Davis v. Railroad Co., 20 Mich. 105, Railroad Co. v. Dolan, 32 Mich. 510; Railroad Co. v. Austin, 40 Mich. 247; Mining Co. v. Kitts, 42 Mich. 34, 3 N.W. 240; Day v. Railway Co., 42 Mich. 523, 4 N.W. 203; Railroad Co. v. Smithson, 45 Mich. 212, 7 N.W. 791; Railroad Co. v. Gilbert, 46 Mich. 176, 9 N.W. 243; Smith v. Potter, 46 Mich. 258, 9 N.W. 273; Henry v. Railway Co., 49 Mich. 495, 13 N.W. 832; Greenwald v. Railroad Co., 49 Mich. 197, 13 N.W. 513; Ryan v. Bagaley, 50 Mich. 179, 15 N.W. 72; Gardner v. Railroad Co., 58 Mich. 590, 26 N.W. 301. The rule is a salutary one in all cases of fellow-servants where the master has exercised due care in the selection of competent employes, and has become pretty generally recognized by the courts of last resort in this country. But the question of who are fellow-servants still perplexes the judicial mind, and gives rise to a great diversity of opinion. Some courts go so far as to hold that, if the master exercises due care in selecting employes, his full duty towards his servants is discharged, even though he selects one or more agents to represent him in overseeing, he controlling and carrying on the business, however large and extended it may be, if he retains the right of employing and discharging his servants. Others hold that so long as they are employed and paid by the same master, and are engaged in a common enterprise, they are fellow-servants. But this is the extreme, and denies substantially all liability of the master in a vast majority of cases where enterprises of any considerable magnitude are carried on. Perhaps no satisfactory rule has yet been formulated by which it may in all cases be determined who are fellow-servants, in such sense as to shield the master for the negligence of his servant. We may start, however, where the rule is clear that a master is liable to his servant for an injury caused by his own negligence. The master may not choose to give his personal attention to his business, and may desire to put another in his place, to manage and control it for him as fully as he might do if personally present. Such person is his alter ego, and the master is as responsible for his acts of omission and commission, while engaged in the business intrusted to him, as if he did such acts himself. It is the duty of the master to supervise, direct, and control the operations and management of his business, so that no injury shall ensue to his employes, through his own carelessness or negligence in carrying it on, or else to furnish some person who will do so, and for whom he must stand sponsor. This is true of natural persons, and it is especially true of corporations, who can only act through natural persons. Whenever the business conducted by the person selected by the master is such that the person selected is in vested with full control (subject to no one's supervision except the master's) over the action of the employes engaged in carrying on a particular branch of the master's business, and, acting upon his own discretion, according to general instructions laid down for his guidance, it is his province to direct, and the duty of the employes to obey, then he stands in the place of the master, and is not a fellow-servant with those whom he controls. In Mining Co. v. Kitts, 42 Mich. 39, 3 N.W. 240, this court said. "This duty of due care in the employment and retention of competent servants is one the master cannot relieve himself of by any delegation, and, if it becomes necessary to intrust its performance to a general manager, foreman, or superintendent, such officer, whatever he may be called, must stand in the place of his principal, and the latter must assume the risks of his negligence. The same is true of the general supervision of his business. If there is negligence in this, the master is responsible for it, whether the supervision be by the master in person, or by some manager, superintendent, or foreman to whom he delegates it. In other words, while the servant assumes the risk of the negligence of fellow-servants, he does not assume the risk of negligence in the master himself, or in any one to whom the master may see fit to intrust his superintending authority." It was upon this principle that in Ryan v. Bagaley, 50 Mich. 179, 15 N.W. 72, this court held the owner of a mine liable for the negligence of the mining captain. The question was made to turn upon whether the mining captain was intrusted with the management of the mine without interference. If he was, in respect to legal responsibility his negligence was the negligence of the defendant.

It now becomes pertinent to inquire what the duties of Kinler, the train dispatcher whose negligence caused the death of the fireman, Hunn, were. The division superintendent's name was W. A. Vaughn. In receiving dispatches from the train dispatcher, the conductors and engineers never act upon them unless signed with the initials "W. A. V." Dispatches delivered by the operator so authenticated were considered authoritative, and were acted upon. Mr. Hair was the chief train dispatcher at Bay City, and he had six train dispatchers under his supervision in the Bay City office only one of whom, however, was on duty at a time. He testified that the train dispatchers signed the initials "W. A. V." to their dispatches, and were authorized to do so, and that the division superintendent, Mr. Vaughn, never sees them at all, and knows nothing about them, and does not even know the instructions in regard to train dispatchers. He was asked: "Question. Who has the control of trains on the Jackson, Lansing & Saginaw division, or who did have at the time of this accident? Answer. Mr. Kilner, in regard to moving them back wards and forwards; the entire charge at that time; nobody else has any right to...