McGill v. Southern Pacific Co.

• Decision Date: 03 May 1893
• Docket Number: Civil 342
• Parties: WILLIAM McGILL, Plaintiff and Appellee, v. SOUTHERN PACIFIC COMPANY, Defendant and Appellant
• Court: Arizona Supreme Court

33 P. 821

4 Ariz. 116

WILLIAM McGILL, Plaintiff and Appellee, v. SOUTHERN PACIFIC COMPANY, Defendant and Appellant

Civil No. 342

Supreme Court of Arizona

May 3, 1893

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Richard E. Sloan Judge.

Affirmed.

J. A Zabriskie, and Maxwell & Satterwhite, for Appellant.

The law applicable to the case at bar is: "That if the plaintiff, at the time of the accident, was in the employ of the defendant, operating said railroad, and was not subject to the orders of the conductor of the work-train, and the accident occurred by the carelessness and negligence of a co-employee, who was engaged in the same general employment then the plaintiff cannot recover in this action."

Redfield on Railways (6th ed., vol. 1, pp. 554, 555) states the rule as follows: "It seems to be now perfectly well settled in England, and mostly in this country, that a servant who is injured by the negligence or misconduct of his fellow-servant, can maintain no action against the master for such injury." Citing the following cases: 3 Mees. & W. 1; 5 Exch. 354; 1 McMull. 385, 36 Am. Dec. 268; 6 Barb. 231; 5 Exch. 343, 4 Met. 49, 38 Am. Dec. 339, and note; 6 Hill, 592, 41 Am. Dec. 771; 3 Cush. 270; 15 Barb. 574; 15 Ill. 552; 9 Cush. 112; 6 Am. Law Reg. 352; 38 Wis. 289; 51 Tex. 270; 49 Cal. 128; 51 Cal. 255; 30 Wis. 674; 11 Am. Law Reg. 641; 14 F. 833; 25 Am. Law Reg. 484; 79 Cal. 97, 21 P. 437; 67 Ill. 498; 14 F. 277; 85 Ill. 500; 44 Wis. 638; 20 Barb. 449; 23 Pa. St. 384; 6 Ind. 205; 11 F. 564; 32 Mich. 510; 81 N.C. 446, 31 Am. Rep. 512; 44 Cal. 70; 53 Cal. 35; 18 Wis. 731; 100 U.S. 214; 4 West Coast R. 563; 88 Cal. 360, 26 P. 175; 11 Kan. 83; 3 Dill. 319, Fed. Cas. No. 3916; 49 Miss. 258; 59 Ala. 245.

This general rule involves no federal question, and is not open to denial in federal courts any more than elsewhere.

Patterson on Railway Accident Law says (p. 342): "Railway servants take upon themselves the ordinary risks of the service, including the negligence of fellow-servants." On page 356 he says: "The common object of railway service being that of fitting the line for traffic, and of carrying on the traffic, all who are employed in the accomplishment of the object, and whose negligence may be the cause of injury to one another, are deemed to be fellow-servants."

Patterson further says (p. 355): "The general rule, therefore, is, that servants take the risk of their fellow-servant's negligence, and the master, if he has not been negligent in the selection or retention of the negligent fellow-servant, is not impliedly liable to indemnify them for any injury resulting from the negligence of that fellow-servant." Citing: 11 Exch. 832; 3 H. & C. 589; 16 C. B. N. S. 669; 23 Pa. St. 110; 10 Allen, 233, 87 Am. Dec. 635; 5 N.Y. 492; 25 N.Y. 562; 111 U.S. 313, 4 S.Ct. 433; 32 Vt. 473; 15 Am. & Eng. R. R. Cases, 243; 76 Me. 143; 76 Ill. 395; 26 Iowa 363; 7 Ohio St. 197; 2 H. & C. 102; 6 C. B. N. S. 429; 17 N.Y. 134; 38 Pa. St. 104, 80 Am. Dec. 467; 10 Cush. 228; 18 N.Y. 432; 93 Pa. St. 479; 53 Pa. St. 453; 109 U.S. 478, 3 S.Ct. 322; 46 Tex. 540; 42 Mich. 523, 4 N.W. 203; 43 Me. 269.

In Abend v. Terre Haute etc. Ry., 111 Ill. 202, 53 Am. Rep. 616, the court say: "The foreman of wreckers while being carried on a wrecking train to the scene of a wreck voluntarily seated himself in the engine cab, and was killed in a collision between that train and another. The evidence showed that the wrecking force is always made up in a hurry out of the employees and servants of the company, without regard to the particular line of service in which they are employed. The removing of obstruction from the track is a distinct branch of the service, to which all the laboring force of the company are liable to be called without any reference to their ordinary duties, and when the force thus made up goes aboard the wrecking train and starts to the scene of the disaster, they are all, including conductor, engineer, foreman, and brakeman, put as much in a common branch of the service, while on the way, as they are after their arrival, and the work of clearing the track has commenced. It was an error to suppose that a force of men cannot be engaged in a common cause, unless all are continuously working at the same time, and engaged in doing precisely the same kind of work. It is sufficient if they are all employed by the same master, and the work of each, whatever it may be, has for its immediate object a common end or purpose, sought to be accomplished by the united effort of all." The doctrine of this case completely covers our case, so far as fixing the plaintiff and the conductor, Barrett, in the same common employment as co-employees is concerned.

For a comprehensive list of cases showing the different classes of servants who are held to be fellow-servants, see Patterson on Railway Accidents, pp. 365, 366, 367.

The only case that stands squarely against this great weight of authority is the case of the Chicago etc. R. R. Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184. The facts in this case were these. The plaintiff, Ross, was the engineer of a freight train at the time of a collision with a gravel train on the same road, and was seriously injured in the collision. At the time of the collision the train was running under a printed regulation of the company, which provided that "The conductor will have charge and control of the train, and of all persons employed on it, and is responsible for its movements while on the road," etc. In that case, under that regulation of the company, the conductor stood in the relation of superior or vice-principal towards the engineer who was running the engine, and the engineer must necessarily obey his orders when running the train.

Here lies the distinction between that case and the case at bar. In this case the plaintiff was in no sense whatever under the orders or direction of the conductor, Barrett; and this is the pivotal point of difference between the two cases. In that case Justice Field says: "There is, in our judgment, a clear distinction to be made in their relation to their common principal between servants of a corporation, exercising no supervision over others engaged in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence." Even in that case Justice Field recognizes one universally conceded rule when he says: "The general liability of a railroad company for injuries, caused by the negligence of its servants to passengers and others is conceded. But where the injuries befall a servant in its employ, a different rule applies. Having been engaged for the performance of special services, he takes upon himself the ordinary risks incident thereto. As a consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this exemption is, that he has, or in law is supposed to have them in contemplation, when he engages in the service, and that his compensation is arranged accordingly. He cannot in reason complain if he suffers from the risk which he voluntarily assumes, and for the assumption of which he is paid. There is another reason assigned for this exemption: that of supposed public policy. It is assumed that the exemption operates as a stimulant to diligence and caution, on the part of the servant, as well for his own safety as that of his master. Much potency is ascribed to this assumed fact, by reference to those cases where diligence and caution on the part of servants constitute the chief protection against accidents. When the service to be performed requires for its performance the employment of several persons, as in the movement of railway trains, there is, necessarily, incident to the service of each, that the others may fail in the vigilance and caution essential to his safety. And it has been held in numerous cases, both in this country and England, that there is implied in his contract of service in such cases, that he takes upon himself the risks arising from the negligence of his fellow-servants, while in the same employment, provided the master is not negligent in their selection or retention, and that if injuries then befall him from such negligence, the master is not liable."

We therefore submit that the refusal of the court to give the charge requested by defendant on the question of fellow-servants, and what kind of service constitutes fellow-servants, was error.

Francis J. Heney, and G. C. Israel, for Appellee.

The instruction regarding fellow-servants directly followed the Ross case, leaving it to the jury to find from the evidence whether Barrett was the conductor of the train upon which the defendant was, and whether he had charge of said train.

Wells, J. Gooding, C. J., and Kibbey, J., concur.

OPINION

The facts are stated in the opinion.

WELLS, J.

This action was brought by plaintiff, who was in the employment of defendant as a section foreman on its railway, for injuries sustained by him in a collision between two railway trains caused by the alleged negligence of the conductor of the train in which he was at the time of the injury. At the trial below several questions were asked, to the ruling of the court on which the defendant took exceptions and assigned as error, as well as exceptions to the charge of the court to the jury. The part of the charge of the court of which the defendant most particularly complains reads as follows "The court instructs the jury that a conductor of a railway train, who commands its movements, directs when it shall start, at what station it shall stop, and has the general management of it,...