Lemos v. Madden

• Decision Date: 09 September 1921
• Docket Number: 964
• Citation: 28 Wyo. 1,200 P. 791
• Parties: LEMOS v. MADDEN, ET AL
• Court: Wyoming Supreme Court

200 P. 791

28 Wyo. 1

LEMOS v. MADDEN, ET AL

No. 964

Supreme Court of Wyoming

September 9, 1921

ERROR to the District Court, Fremont County, HON. CHAS. E. WINTER Judge.

Action by Chas. J. Lemos against William Madden, James M. Graham and Hugh Murray, to recover damages for bodily injuries incurred from cold and exposure while caring for defendants' sheep, it being alleged by plaintiff that the negligence and failure of defendants to supply him with fuel and assistance at the camp and on the range while at work with the sheep was the proximate cause of his injuries. Other material facts are stated in the opinion.

Reversed.

M. C Burke and Ray E. Lee, for plaintiff in error.

The only question raised by the general demurrer to the petition is whether the petition states a cause of action; this question however, involved the subordinate question, 1, the duty of the master to use due care to protect his servant, 2 assumption of risk, and 3, contributory negligence. The master is liable for accidents occurring in the course of the employment not induced by carelessness or improper conduct of the employee. The master must use ordinary care to prevent injury to his servant unless the risk be assumed or there be contributory negligence. The petition alleged facts on this branch of the case sufficient to constitute a cause of action. Assumption of risk presupposes that the master has performed his duty. (Slack v. Hinres, 65 N.E. 669.) It does not include risk arising from negligence of the master nor unreasonable nor extraordinary risks or perils. (Sinclair Co. v. Waddell, 65 N.E. 437.) It does not apply where the master is negligent in furnishing suitable instrumentalities. (Boucher v. Robsen Mills, 65 N.E. 819.) The servant is chargeable with ordinary care. (29 Cyc. 528.) He is not required to abandon his post at the first appearance of danger. Contributory negligence is not imputed by acts performed in the usual manner. (29 Cyc. 516.) Injuries resulting from wanton, reckless or wilful conduct to servant by master not excusable under the doctrine of contributory negligence. It is the duty of the servant to protect his master's property that is in jeopardy. (Hollenbeck v. Engineering Corps, 129 P. 1058; Martin v. North Jersey R. Co., 80 A. 477; Terre Haute & I. R. R. Co. v. Fowler, 56 N.E. 228.) Acts performed in emergency not governed by ordinary rules of negligence, (26 Cyc. 1274, R. R. Co. v. Rogers, 203 F. 462; Melkisson v. Fuel Co., 155 P. 727; Nelson v. R. R. Co., 148 P. 388; R. Co. v. Morgan, 171 S.W. 1187.) The proximate cause of the injury was the failure of the master to provide fuel at the camp. (Lilly v. New York Central R. R. Co., 14 N.Y. 503.) Servants who are faithful and diligent in protecting a master's property are entitled to protection. (Penn. v. McCaffery, 38 N.E. 671; Malby v. Belden, 45 A.D. 384; Ill. Cent. Ry. Co. v. Smith, 85 S.W. 1173; Fisher v. Ry. Co., 2 L. R. A. N. S. 954.) The petition shows employer's failure to provide common necessities of protection; injury to plaintiff due to negligence of defendant; injury incurred in the line of duty during an emergency; plaintiff's reliance upon defendants doing their duty; that plaintiff was performing his duty at the time of the injury. The trial court erred in sustaining the demurrer.

Dillon & Kimball, for defendants in error.

The petition fails to state a cause of action. The allegation of duty is a mere conclusion of law. (Marvin Co. v. Ward, 46 N.J.L. 19; Brown v. Mallett, 5 C. B. 599; Nickerson v. Bridgeport Co., 46 Conn. 24; Tower v. Providence Co., 2 R. I. 404.) A demurrer does not admit allegations constituting mere conclusions of law. (Thomas Kind v. Street Ry. Co., John Morrison v. Street Railway Co., 23 R. I. 583, 70 L. R. A. 924.) The acts of negligence alleged could not be the proximate cause of the injuries. (29 Cyc. 488. Tremelling v. So. P. Co., 170 P. 80.) The master is not liable for injuries caused by negligence of a fellow servant. (26 Cyc. 1276.) It is alleged that the proximate cause of the injuries was failure of the master to provide sufficient fuel in the camp, but it is also alleged that plaintiff left the camp on a certain morning and remained away during that day and night during which time he was injured by exposure to storm and cold, hence the absence of fuel at the camp could not have prevented the alleged injuries which according to the petition itself were the result of voluntary exposure to extremely cold and stormy weather on the part of plaintiff himself.

M. G. Burke and Ray E. Lee, in reply.

The petition alleges that plaintiff's employer agreed to supply him with fuel and clothing, and having failed to do so it was necessary for him to wrap himself in the bed clothing to keep from freezing during the night that his sheep strayed from camp. This necessitated his going out in the storm to gather them the following day, a task of such great difficulty that he was unable to get back to the camp that night. It was alleged that this could have been avoided had the camp mover attended to his duty. Where the servant is injured in attempting to save his master's property, contributory negligence will not be attributed to him. (Prophet v. Kemper, 95 Mo.App. 219; Maltby v. Belden, 45 A.D. 382; R. R. Co. v. Smith, 51 S.W. 506.) Left alone with sheep in a severe storm plaintiff sought to protect his employer's property in an emergency, and in doing so was frozen and injured. His employer failed to perform his contract, in supplying fuel, clothing and help. This states a cause of action. (Schumaker v. R. R. Co., 12 L. R. A. 257; Hyatt v. R. R. Co. 19 Mo.App. 287; Clifford v. R. R. Co., 12 P. 219.) Plaintiff would have incurred a penalty had he deserted the sheep. (Laws 1919, c. 49.)

BLUME, Justice. POTTER, C. J., and TIDBALL, District Judge, concur.

OPINION

BLUME, Justice.

For the sake of brevity, the plaintiff in error will be referred to as plaintiff or appellant, and the defendants in error as defendants or appellees.

The appellant, plaintiff below, a demurrer to the original petition by him filed having been sustained, filed an amended petition alleging in substance: That defendants Madden and Graham were owners of a band of sheep, located near Moneta, Fremont County, defendant Murray being in charge of the sheep as camp mover and agent. That on Nov. 4, 1916, Murray, as such agent hired plaintiff to take charge of the sheep as herder; that it is the duty of a camp mover to provide fuel for the herder at his camp, sufficient to protect from the cold and to cook meals, and to see that all provisions and things necessary for the comforts and protection of the herder are furnished; that the duty of the owners is to provide a competent camp mover and to see that the herder provides the things above mentioned; that it is the further duty of the camp mover to visit the sheep camp once in every three or four days, and see that everything for the comfort and safety of the herder is provided; that in case of storm, he must immediately go to the sheep camp to render such assistance as may be necessary to the herder and see that the herder is provided for and protected, and that the sheep are cared for; that the duties mentioned were the duties of the owners and camp mover respectively, in this case; that defendants well knew that plaintiff himself could not furnish the things mentioned; that all said duties are well established by custom of long usage in the business of raising sheep on the range of Wyoming and other states; that on Nov. 10, 1916, a severe storm arose and the weather became severely cold; that plaintiff was compelled to herd his flock at night to keep them from straying away and becoming lost; that defendants had wholly failed to provide the necessary fuel; that all the fuel available was used up in the early part of the night; that plaintiff became so overcome with cold and the effects of the storm, and having no fuel with which to keep up the fire, was compelled to go to bed to keep from freezing, and his flock strayed away before morning; that the following morning the storm was still raging and the weather severely cold; and no fuel at the camp to cook breakfast; that plaintiff started after his flock, relying on defendants coming to his aid as he had a right to expect and it was their duty to do; that it was late in the day before he got his flock gathered and he was unable to get back to his camp that night, but was compelled to stay out all night and only reached help late the day following when he found the camp of one Evans; that plaintiff's feet were severely frozen; that he was helped by Evans and taken to Shoshoni for treatment; that during this time Murray was drunk at Shoshoni; that plaintiff acted with care; that his injuries were sustained by the careless, wilful and negligent acts of defendants; that he is 51 years of age, and can never permanently recover from his injuries; that said Murray had had a habit for years of getting drunk and neglecting his duties to the knowledge of said owners, but of which plaintiff did not know. He asks damages of $ 10,000.

A demurrer to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action was sustained; and plaintiff standing on said amended petition, judgment was entered for defendants. The case is here on petition in error.

1. Appellees cannot rely upon the fact that the injury was inflicted by the negligence of a fellow servant, for the reason that the fellow servant is himself made a party, and no separate demurrer was filed for the other defendants (31 Cyc. p. 332); because, further, it is alleged in the petition that the fellow servant was incompetent, to the knowledge of the other defendants, plaint...