Kastl v. Wabash R. Co.

• Decision Date: 16 July 1897
• Citation: 72 N.W. 28,114 Mich. 53
• Court: Michigan Supreme Court
• Parties: KASTL v. WABASH R. CO. ET AL.

72 N.W. 28

114 Mich. 53

KASTL v. WABASH R. CO. ET AL.

Supreme Court of Michigan

July 16, 1897

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Annie Kastl, administratrix, against the Wabash Railroad Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Alfred Russell, for appellant Wabash R. Co.

E. A Gott, for appellant Detroit, L. & N. R. Co.

Hanchett & Hanchett, for appellant Flint & P. M. R. Co.

Lemuel H. Foster, for appellee.

HOOKER J.

The plaintiff's intestate was a car inspector in the employ of the Wabash Railroad Company, and, while engaged in the inspection of certain cars belonging to said company, was killed through the error of a switchman in throwing a switch whereby another train was sent against the cars which he was inspecting. It is conceded that, if the switchman Hamil was in the employ of the defendant Wabash Railroad Company, there can be no recovery, as in that case the alleged negligence of Hamil was that of a fellow servant. It is contended, however that this cannot be said, and that Hamil was the employ� of a different "entity" than the intestate's employer, going by the name of the "Union Terminal Association." The record discloses that the depot yards, and tracks were occupied jointly by the three defendants, which were separate and distinct railway corporations, and that for their mutual convenience and economy, in managing their respective railroads, they united in the expense of yard and depot work, contributing proportionately, and managing it through officers and employ�s, under the name mentioned, and a written contract, which recognizes that "the employ�s are in the joint service of the parties to the contract." The business of the depot and yards was put in charge of a board, consisting of representatives of the respective companies, and this board employed and directed men to do yard work for all. These men were paid by the board, from a fund in their custody, contributed in the first instance, and periodically replenished, by the defendant companies, constituting the terminal association so called. The switchmen, yard master, and others were employed and controlled by this board, and the business of locating and moving trains in the yard was conducted by it. The intestate was employed by the Wabash Company to inspect its cars, and presumably received his pay from said company, but like all other employ�s upon and about trains, while in the yard, worked under and subject to the regulations and methods prescribed by the board in the management of the yard.

It seems to be conceded that the switchman and the intestate were engaged, at the time of the accident, in the common enterprise of handling the business of the Wabash road; and as we understand the plaintiff's contention, the case should turn, so far as the doctrine of fellow service is concerned, on the question whether it can be said that they were at work for a common master. Under his employment, this switchman, though engaged in the business of the Wabash road, at the particular time when the accident happened, was to do business for the general convenience of all the companies to which the ordinary use by each company of its tracks and portion of the yard was made in a manner subservient. This made it impossible for either road to conduct its business in all departments, and made the necessity of placing the control of some portion of its business beyond its own control imperative. Therefore the companies, by mutual arrangement, placed such control in the hands of a board, which, though made up of representatives of the three roads, was beyond the power of any one road to control. The conduct of the business, as to the handling of trains in the yard, was as much beyond the control of any one company as though it were done by a separate corporation under contract, in which case it could not be said that these men were fellow servants. The case of Railroad Co. v. Craft, 16 C. C. A. 176, 69 F. 124, was a case where several roads used a station and yards belonging to a corporation known as the "Northern Pacific Terminal Association." A terminal association employ� was killed by the negligence of a Northern Pacific engineer, and it was held that the men were not fellow servants, the court saying: "It is true that Craft's duties were to check up the cars that came into the yard, whether they belonged to the Northern Pacific R. R. Co., or to other companies; but, so far as the record indicates, he was in a distinct and separate employment from that of Stapleton, and they were in no sense under a common master, or subject to the same control." This case cites and discusses the case of Phillips v. Railway Co., 64 Wis. 475, 25 N.W. 544, which used...