King v. Interstate Consoe. St. Ry. Co.

• Decision Date: 12 February 1902
• Citation: King v. Interstate Consoe. St. Ry. Co., 70 L.R.A. 924, 51 A. 301, 23 R.I. 583 (R.I. 1902)
• Parties: KING v. INTERSTATE CONSOE. ST. RY. CO. MORRISON v. SAME
• Court: Rhode Island Supreme Court

51 A. 301

23 R.I. 583

KING

v. INTERSTATE CONSOE. ST. RY. CO.

MORRISON

v. SAME

Supreme Court of Rhode Island.

Feb. 12, 1902.

Actions by Thomas King and by John Morrison against the Interstate Consolidated Street Railway Company.Demurrers to the declaration in each case sustained.

J. M. Gillrain and T. P. Corcoran, for plaintiff.

W. B. Vincent, for defendant.

TILLINGHAST, J.These cases, which are substantially alike, are before us on demurrers to the declarations.We will consider the first-named case.It is trespass on the case for negligence, and sets out, in substance, in the first count thereof, that the plaintiff was employed by the defendant corporation to help remove snow from its tracks between Fawtucket, R. I., and Attleboro, Mass., in very cold weather in the month of February, 1899; that the work had to be done over a wide tract of open country, remote from dwelling houses and other habitations; that the defendant knew that the work of removing said snow and ice from its tracks and roadbed in said open country, in view of the cold and stormy weather, was very trying, exhausting, and dangerous to the laborers engaged therein, and that it was the duty of the defendant corporation to furnish sufficient food and shelter to the plaintiff during the continuance of said work, and to provide for the safety of the plaintiff while so employed, and to carry him to his home in Pawtucket when returning from said work; that he was ignorant of the danger attending said work in the open country in cold and stormy weather, and that while engaged for 24 hours therein, and while in the exercise of due care, and in ignorance of the peril to which he was exposed, both of his feet were frozen, of which fact he informed the defendant's agents and servants, and requested them to carry him to his home, in Pawtucket, but that the defendant, its agents and servants, well knowing the premises, carelessly and negligently failed to provide food and shelter for the plaintiff; and that the freezing of his feet was due to the failure of the defendant corporation, its agents and servants, to supply him with food and shelter while so engaged.It is further alleged that, in consequence of the freezing of plaintiff's feet, they had to be amputated, whereby he was disabled, etc.The second count differs from the first in that it alleges that, without fault on his part, both of his feet were frozen, of which fact he informed the defendant its agents and servants, and requested them to carry him to his home, in Pawtucket, which they carelessly and negligently refused to do, and, being unable to procure passage to his home, he was obliged to make his way there on his hands and knees, and was engaged in making said journey from 7 o'clock in the evening until 8 o'clock the next morning.And he avers that in consequence thereof, and without fault on his part, his feet were so badly frozen that they afterwards had to be amputated, and that it was the duty of the defendant, under the circumstances set forth, to provide him with food and shelter and transportation as aforesaid.To this declaration the defendant demurs on the grounds (1) that the defendant owed no legal duty to the plaintiff in the premises; (2) that the alleged negligence was not the proximate cause of the accident; (3) that the danger complained of was obvious to the plaintiff, and that he assumed it as one of the risks of his employment; (4) that the plaintiff was not in the exercise of due care; and (5) that it does not appear from the declaration that the defendant was guilty of negligence.

That, as a general proposition, a railroad company is under no legal obligation to provide food and shelter for its servants, may be regarded as not open to question.No such duty arises from the ordinary relation of master and servant, and hence the mere fact that the plaintiff alleges the existence of such a duty does not sustain or aid the pleading: it being well settled that such allegation, being one of mere matter of law, is useless where the declaration is insufficient, and superfluous when sufficient without it.Brown v. Mallett, 5 C. B. 599;Safe Co. v. Ward, 46 N. J. Law, 19.In other words, there must be an allegation of facts sufficient to create the duty or obligation, or else the declaration will be fatally defective.Nickerson v. Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1.No such duty as that alleged, then, being ordinarily devolved upon the master, we need only inquire whether the facts set out in the declaration bring the case within any exception to the general rule.We do not think they do.The case is no different upon principle from one where a farmer employs a wood chopper to go with him in very cold weather into the woods to chop down trees, haul logs or timber, or do other outdoor work at quite a distance from the home of the servant.In connection with such employment the employé is supposed to look out for himself in so far as the provisions for his physical wants are concerned, and to protect himself from the cold and inclement weather, which is a danger inherent to the work, as best he may and it is well settled that no legal duty devolves upon the employer in regard to such matters.It is, of course, competent for the person seeking employment to accept or reject that which is offered; but, if he accepts it, it is the almost universal rule that he assumes the ordinary risks incident thereto.That one of the risks incident to long-continued outdoor employment in the winter time in this climate is that one's feet or hands may be injured by freezing is so clearly within the rule of assumed risks on the part of the servant as to require no argument Take the case of a teamster whose route, as is frequently the case, passes through a large tract of uninhabited country.He starts out in cold and stormy weather, and during his journey his feet become frozen, or he is blockaded by a snowstorm, on account of which he suffers from hunger, fatigue, and cold to the extent of causing him serious physical injury.Could it be claimed for a moment that his employer could be called upon to compensate him for the damages thus sustained?Clearly not The danger or risk involved in such case would clearly be incidental to the employment and by accepting the employment he assumes the risk.Again, take the case of an ice dealer, who employs men to go with him into the open country, several miles from their homes, it may be, in very cold weather, to engage in cutting and storing ice.Not having taken proper precautions to protect themselves from the cold, or not being vigorous to endure the strain which is put upon them by the severity of the weather and the character, of the work, they suffer from freezing or from exhaustion, and are thereby made sick and caused to suffer damage.Could it be claimed that their employer would be liable for the damages thus sustained?That this question must be answered in the negative would seem to be...