Lutz v. Atl. & Pac. R. Co.

• Decision Date: 15 August 1892
• Court: New Mexico Supreme Court
• Parties: LUTZ et al.v.ATLANTIC & PAC. R. CO.

6 N.M. 496

30 P. 912

LUTZ et al.

v.ATLANTIC & PAC. R. CO.

Supreme Court of the Territory of New Mexico.

Aug. 15, 1892.

Error to district court, Bernalillo county; WILLIAM D. LEE, Judge.

Action by Ella Sykes, now Ella Lutz, and Marion A. Lutz, her husband, against the Atlantic & Pacific Railroad Company, for negligently killing plaintiff's (Ella Sykes') former husband. Judgment for defendant. Plaintiffs bring error. Affirmed.

It is proper to direct a verdict for one party where it would be necessary to set aside a verdict for the adverse party.

B. S. Rodey, for plaintiffs in error.

W. C. Hazeldine and H. L. Waldo, for defendant in error.

SEEDS, J.

This is an action of trespass on the case, brought by the plaintiffs in error against the defendant corporation, for the statutory damages for the negligent killing of the plaintiff's (Ella Sykes') former husband by the defendant. The declaration contains three counts. The first count declares upon the negligence of the fellow servants of the deceased, he being a conductor upon a freight train of the defendant. The second count declares upon the negligent, careless, and improper selection of the deceased's fellow servants by the defendant, and the retention of said fellow servants in its employ after full knowledge of their incompetency, and alleges that the killing was caused by reason of said incompetency. The third count declares upon the negligent conduct of the defendant in furnishing the deceased with an improper, unsafe, and defective caboose, knowing at the time that it was unsafe and defective, but which the deceased used under protest, and only under and by reason of the promise made by the defendant to the deceased that he should be provided with a safe one in a very short time; and because of the negligence and carelessness of the deceased's fellow servants upon another train of the defendant's, running into and destroying the caboose in which the deceased was, by reason of which he was killed. To the declaration, and each count thereof, the defendant filed a demurrer. The court sustained the demurrer to the first and third counts, and overruled it as to the second; whereupon the defendant answered as to the second count. A jury was called, and after the plaintiffs' evidence was in and they had rested, the court, upon motion of the defendant, instructed it to find for the defendant. The plaintiffs sued out a writ of error, and allege error in sustaining the defendant's demurrer to the first and third counts, and in instructing the jury to find for the defendant upon the trial, under the second count.

1. The first count declared upon the negligence of the deceased's fellow servants, whereby he lost his life. Unless changed by statute, it is now the unquestioned law that damages cannot be recovered for injuries sustained by reason of the negligence of fellow servants. Negligence of such servants, of a common employer, is part of the risk which public policy requires that an employe take in entering upon a service in which there are fellow servants. Priestley v. Fowler, 3 Mees. & W. 1; Murray v. Railroad Co., 1 McMul. 385; Farwell v. Railroad Corp., 4 Metc. (Mass.) 49; Pierce, R. R. 358; 2 Ror. R. R. 1183; 1 Lawson, Rights, Rem. & Pr. § 301; Beach, Contrib. Neg. § 102; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322.

Beach in his work objects strenuously to the reasoning upon which this rule of law is based, but admits that it is now universal, unless when changed by statute, as it has been in some jurisdictions. We are content to adopt the rule as the law for this jurisdiction, whatever may be the theoretical objections to it, based upon what may be thought to be purely logical grounds, until such time as the legislature sees fit to change it.

But the plaintiffs contend that the rule as above enunciated has been changed. The question for decision then is, has it been changed? Sections 2308-2310, Comp. Laws N. M., provide, in substance, that, when “any person” comes to his or her death by reason of the negligence or carelessness or criminal action of an agent, officer, or other employe of a railroad company, that his or her representative may recover of the company $5,000. The contention is that “any person” in this statute has reference to any one whomsoever who may be killed, and hence includes one who may be a fellow servant. By further reading the statute it will be found that the words “any person or passenger” are used, which would seem, however, to throw doubt upon the real meaning of the words “any person,” rather than to more definitely explain them. This statute is almost verbatim a copy of the Missouri damage statute. In that state it has received a decisive construction after a somewhat lengthy period of uncertainty. In Schultz v. Railway Co., 36 Mo. 13, it was held that the general meaning of the words “any person” was the meaning which the legislature intended to attach to them, and that, therefore, the common-law rule of fellow servants taking the risk of each other's negligence, when not notorious and known to the employer, was abrogated. But this was not satisfactory, and in the case of Connor v. Railroad Co., 59 Mo. 308, two of the five judges vigorously dissented; Judge HOUGH in his dissent satisfactorily showing, to the writer's mind, that, whatever may be the sounder and more humane rule, the legislature never intended to change the rule as to the liability for negligence of a fellow servant by that statute, but only to give a cause of action to the representatives of a deceased person where none existed before, and to limit the extent of that liability. Finally, in the case of Proctor v. Railroad Co., 64 Mo. 112, the supreme court of that state took the view of the case so ably expounded by Judge HOUGH, and it has remained the law of that state ever since. Upon a similar statute, the same words have received the same construction in Iowa, (Sullivan v. Railway Co., 11 Iowa, 422;) in Maine, (Carle v. Railway Co., 43 Me. 271;) and in Colorado, (Railway Co. v. Farrow, 6 Colo. 498.) The statute of this territory (sections 2308-2310) was adopted after the final decision in the Connor Case in Missouri, and it was urged that it is the law that, when one jurisdiction adopts without change the statute of another jurisdiction, it also adopts the judicial construction placed upon it by that jurisdiction. While this is so, yet we do not think it necessary in this case to rest our decision upon that principle, but rather upon the broader principle that there is nothing in the statute itself, nor in the history of its adoption, which goes to show that it was the intention of our legislature to overthrow a rule thoroughly ingrained in the judicial holdings of the courts of the land, and in view of which it must now be held that all contracts for hire to corporations, in the absence of express stipulations, are made. The action of the trial court in sustaining the demurrer to the first count was correct.

2. The second count was predicated upon the assumed fact that the defendant company was negligent in its selection of the fellow servants of the deceased, Sykes, or in the keeping of them in its employ after knowledge of their incompetency had been brought home to it, and that it was through such incompetency that the deceased was killed. After the plaintiffs' evidence was all in, the jury was instructed by the court to find for the defendant, which it did. Of this action the plaintiffs complain. They insist that there was something to go to the jury, and that in instructing it to find for the defendant the court usurped the province of the jury, which was error. However, it is now the settled law of the supreme court of the United States, and of this court, that when evidence is of such a character that, should the jury find for one side rather than the other, it would be the duty of the court to set aside such verdict, it will in the first instance direct a verdict for the party thus entitled to it. Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Candelaria v. Railway Co., (N. M.) 27 Pac. Rep. 497; Gildersleeve v. Atkinson, Id. 477. We have thoroughly read the evidence produced by the plaintiffs to sustain the allegations of their second count, but we are unable to see where there is anything which tends to support those allegations. The action of the court, therefore, was correct.

3. The real difficulty in this case grows out of the sustaining the demurrer to the third count. It will be necessary, therefore, in order that a complete understanding of the count may be had, to set out in extenso the material portions of the same. After the allegations of incorporation, the place of doing business on the part of the defendant, its employment of the deceased, and its duty to furnish proper, safe, and reliable cars, cabooses, and other machinery, the count continues as follows: “Yet, not regarding its duty and promises in the premises, the said defendant did not so furnish the said Sykes with all safe, properly constructed, and reliable cars, locomotives, machinery, and tools for the proper conduct of his conducting of trains as aforesaid, in this: That after his engagement and entering the employment as aforesaid, and some short time previous to the happening of the event hereinafter mentioned, the said defendant failed to furnish said Sykes with a proper caboose or way car, such as is usually and ordinarily used upon said same railroad, and upon all other like railroads, but instead wrongfully, negligently, and carelessly gave and furnished him, for use upon his said trains, against his consent and over his protest, (but which he was induced to take and use, under faithful promises of the defendant, by its agents and their servants, then and there to him made, that he would be furnished with a proper caboose in a very short time,) a weakly-built, common, unsubstantial box car, without any...