McBride v. Union Pac. Ry. Co

• Citation: 3 Wyo. 247,21 P. 687
• Parties: McBRIDE v. UNION PAC. RY. CO
• Decision Date: 01 February 1889
• Court: United States State Supreme Court of Wyoming

21 P. 687

3 Wyo. 247

McBRIDE v. UNION PAC. RY. CO

Supreme Court of Wyoming

February 1, 1889

Error from district court.

Action for personal injuries by John McBride against the Union Pacific Railway Company. Defendant had judgment, and, on the refusal of the court to grant a new trial, plaintiff brings error. Reversed.

Judgment reversed.

A. C Campbell and W. R. Stoll, for plaintiff in error.

W. W Corlett and J. A. Riner, for defendant in error.

CORN J. SAUFLEY, J., dissenting.

OPINION

CORN, J.

Plaintiff in error brought suit against the defendant in error in the district court of the First judicial district, to recover $ 25,000 damages for personal injuries received by reason of the negligence of the defendant, plaintiff being in defendant's employ at the time the injuries were received. The evidence tends to show that Harry Stubbs, who is described as a "gang boss," on the day the injuries were received took the plaintiff and found other employes of defendant to lower an engine. The engine, having been run into the shop for repairs, had been hoisted above the track, and was resting upon heavy timbers, the timbers resting upon the rails and above a pit dug under the track, two or three feet deep. All the timbers had been taken from under the engine but one, and Stubbs had previously ordered two of the men away. Plaintiff by order of Stubbs was on the right-hand side of the engine, and the two remaining employes were on the other side. While the last timber was being removed Stubbs ordered one of the two remaining employes away, leaving but one, John Estes, holding the timber on the left-hand side. Immediately afterwards the end of the timber held by Estes dropped into the pit, causing the end held by plaintiff to fly up and strike him under the chin, forcing his head violently against the driving rod and inflicting upon him a serious and permanent injury. A special verdict was rendered in the case, and the foregoing statement of the facts, while incomplete when taken in connection with the special verdict, will be sufficient for the decision of the case. The verdict of the jury was as follows: "We, the jury in the above-entitled cause, do upon our oaths say as to the first cause of action as follows: (1) That the plaintiff, John McBride, was injured at the shops of the defendant, in Cheyenne, on the 27th of November, 1883, and that the injuries there and then received were serious and permanent. (2) That one Harry Stubbs was at the time above mentioned a 'gang boss' in the employ of the defendant, and as such 'gang boss' had immediate control of the men working in the shops of the defendant; he himself being under the general orders of the master mechanic. (3) That said Harry Stubbs had charge of the men engaged in lowering the engine and removing the timbers from under said engine on the day of the accident. (4) That one James Butler, foreman in the employ of the defendant, was present at the said shops on the day of the accident. That the duty of a foreman of the shops was to superintend the work in said shops under general directions of the master mechanic. (5) That one R. McDougal, master mechanic in the employ of the defendant, was not present at the shops at the time of the accident. (6) That three men were generally employed to remove the timbers referred to, although two men, --one of them being in the pit under the engine, --could do the work safely. (7) That on the day of the accident, and at the time of the removal of the last timber from under said engine, three were employed in said removal; the plaintiff on the right-hand side of the engine, and Louis Jacobson and John Estes or 'Monohan' on the left-hand side. (8) That in consequence of an order given by said Harry Stubbs the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also find Louis Jacobson negligent. (9) That the plaintiff was performing his duties with ordinary caution. (10) That the said timber was between seven and eight feet long, weighed about 180 pounds. That the end of said timber farthest from the plaintiff fell into the pit under said engine, causing the other end to fly up and to cause the injuries to the plaintiff. (11) That if on the facts the finding should be for the plaintiff, we find for the plaintiff, and assess his damages at the sum of twenty-five thousand dollars, ($ 25,000.) If on the facts the finding should be for the defendant, we find for the defendant. We find for the defendant on the second cause of action." No error is assigned on the finding of the jury or the judgment of the court below upon the second cause of action. On the 2d day of July, 1886, the plaintiff moved for judgment in his favor upon the verdict. Subsequently, on the 17th day of July, 1886, the plaintiff entered his motion to vacate the verdict, and for a new trial. July 19th the court overruled both motions. On the same day the plaintiff again moved a new trial, assigning, among other grounds, that the court erred in rendering judgment for the defendant upon the verdict.

The questions we are called upon to decide are whether the court erred in refusing to grant a new trial upon the motion of plaintiff, and whether the court erred in refusing to render judgment in favor of plaintiff and rendering judgment in favor of defendant upon the special verdict. If the plaintiff is entitled to judgment upon the findings of the jury it is upon the principle that Harry Stubbs was not, in contemplation of law, a fellow-servant of the plaintiff, but was a vice-principal standing in the place of the defendant, by reason of being placed by the defendant in control of a separate matter or department; or that, not being in control of a separate department, he yet was the representative of the common employer, by being placed in charge of the performance of duties upon which depended the safety of the men, and which the employer could not shift by delegating them to a subordinate. Under the facts as found by the jury it is clear that the defendant cannot be held liable for the negligence of Stubbs as a vice-principal in exclusive control of a department. The finding makes it evident that the control of the shops was in the master mechanic, under whose general orders Stubbs had immediate control of the men; that while the master mechanic was not present on the day of the accident, James Butler, the foreman, was present and his duty was to superintend the work in the shops under general directions of the master mechanic. None of the authorities, we believe, go to the length of holding the master liable for the negligence of an employe as vice-principal in control of a department, when there is in the same department, and present at the time of the accident, a superior under whose orders and control such employe performs his duties. There is, however, a class of cases where the employe is the representative of the master, though not in control of a separate department; and where the master is liable for his negligence, not upon any ground of superior rank or grade in the service, but from the character of the service which he is designated to perform. "One of the exceptions to the general rule of the common law that the master is not liable to one employe for the negligence of a co-employe in the same service, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master." Railroad Co. v. Fox, 31 Kan. 586, 597, 3 P. 320. Such proper diligence imposes upon the master such duties as to furnish to the men a reasonably safe place in which to work, to furnish them proper and safe machinery and materials with which to work, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid injury from collisions, etc., to furnish sufficiently skillful co-employes, and in sufficient number for the safe performance of any particular piece of work in which an employe is called upon to take part, etc.

This brings us to a consideration of the facts as found in the special verdict. The eighth finding recites "That in consequence of an order given by said Harry Stubbs, the said Louis Jacobson did not assist in removing the last timber from under said engine, and that in consequence of his failure so to assist the accident occurred, and to that extent we find Harry Stubbs negligent. We also find Louis Jacobson negligent." This is the only finding which imputes negligence to any one connected with the work in hand; and we think it clear, if the plaintiff can recover at all, it must be upon the ground that Stubbs, exercising the duties of the master in this regard, by his order left an insufficient number of men to do the work safely, and thereby the accident occurred. It cannot be maintained that by the order taking Jacobson away from the work some surprise or confusion among the remaining employes was occasioned, and that the accident thereby occurred, although sufficient force remained to do the work if properly applied. If the finding means that, then the plaintiff cannot recover, for in directing and assisting in the work merely Stubbs is a fellow-servant, and not the representative of the master. Moreover, the jury in terms find that in consequence of Jacobson's failure to assist the accident occurred. But by the sixth clause of the verdict the jury find "that three men were generally employed to remove the timbers referred to, although two men--one of them being...