Merrill v. Oregon Short Line R. Co.

• Citation: 81 P. 85,29 Utah 264
• Decision Date: 15 May 1905
• Docket Number: 1618
• Court: Supreme Court of Utah
• Parties: MERRILL et al. v. OREGON SHORT LINE R. CO

81 P. 85

29 Utah 264

MERRILL et al. v. OREGON SHORT LINE R. CO

No. 1618

Supreme Court of Utah

May 15, 1905

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Action by Ellen Merrill, individually and as guardian ad litem of Virgil Merrill and another, against the Oregon Short Line Railroad Company. From a judgment for plaintiffs, defendant appeals.

AFFIRMED.

P. L Williams and Geo. H. Smith for appellant.

APPELLANT'S POINTS.

The issues involved in this action are to be determined in accordance with the law of the State of Idaho, where the accident occurred and the transactions took place out of which the case rose, and the trial court very properly so charged the jury. (Sartin v. O. S. L. R. R. Co., 27 Utah 447; Northern P. R. R. Co. v. Babcock, 154 U.S 190; Herrich v. Minn. & St. L. Ry., 31 Minn. 11; Evey v. Mex. Cent. Ry., 81 F. 303; Ill. Cent. R R. v. Ihlenberg, 75 F. 879; Nor. P. v. Mass. 63 F. 114.) And under the law of Idaho, the deceased was a fellow servant with all of the members of the two gangs of car inspectors and repairers, including the foremen of those gangs. (Sartin v. O. S. L., 27 Utah 447; Stephani v. S. P. Co., 19 Utah 196; Anderson v Daly Mining Co., 16 Utah 28, 41; Snyder v. Viola Min. & Smelt. Co., 2 Idaho 771, 3 Idaho 282, 26 P. 127; Alaska Min. Co. v. Whelan, 168 U.S. 86; Nor. P. R. R. Co. v. Peterson, 162 U.S. 346; New Eng. R. R. Co. v. Conroy, 175 U.S. 323; Martin v. A. T. & S. F. R. R., 166 U.S. 399; Oakes v. Mass., 165 U.S. 363; Nor. P. R. R. Co. v. Hambly, 154 U.S. 349; Quebec Steamship Co. v. Merchant, 133 U.S. 375; Randall v. B. & O. R. R., 109 U.S. 478; Brown v. Cent. P., 68 Cal. 171; Fagundes v. Cent. P., 79 Cal. 97; Potter v. N.Y. C. & H. R. R. Co., 136 N.Y. 77; Young v. Boston & Me. R. R., 46 N.E. 624.)

We first submit, therefore, that the defendants request of the court to charge the jury to return a verdict for defendant should have been given and that the plaintiffs were not entitled to recover, because the proof failed to show negligence on the part of defendant company that caused the injury, but disclosed the fact that the only neglect, if any, was in the details of carrying on the work by the deceased and his fellow servants. (Sartin v. Oregon Short Line R. R. Co., 27 Utah 447; International & C. N. Rd. Co. v. Hall, 78 Tex. 657, 15 S.W. 108; Hussey v. Coger, 112 N.Y. 614; Michigan Cent. Rd. Co. v. Dolan, 32 Mich. 510; Cent. Rd. Co. v. Keegan, 160 U.S. 259; Durst v. Carnegie Steel Co., 173 Pa. 162, 33 A. 1102.)

Before recovery could be had, plaintiff must allege and prove negligence in selecting the servant employed to carry out the details of the business. (Ryan v. Cumberland Valley Rd. Co., 23 Pa. 384; Duenfeld v. Boumann, 58 N.Y.S. 110; Frazee v. Stott, 120 Mich. 624; 79 N.W. 896; Snow v. Hosatonic Ry. Co., 8 Allen 441, 85 Am. Dec. 720; McKinnon v. Norcross, 148 Mass. 533; Floyd v. Sugden, 134 Mass. 563; Potter v. New York Cent. & H. R. Rd., 136 N.Y. 77; Duthie v. Caledonia Rd. Co., 24 Sc. Sess. Cas., 4 Series, 934.)

It is sufficient if he provides against such dangers as may possibly arise and gives the workmen means of protecting themselves. (Snow v. Hosatonic Ry. Co., 8 Allen 441, 85 Am. Dec. 720; McKinnon v. Norcross, 148 Mass. 533; Floyd v. Sugden, 134 Mass. 563; Potter v. New York Cent. & H. R. Rd., 136 N.Y. 77; Wright v. So. P. Co., 80 F. 260.)

See further as particularly holding and illustrating the proposition that when the employer has made and promulgated rules and selected reasonably competent servants to conduct the details of the business, including that of observing the rules and seeing that they are observed, he has completely performed his primary duty and is not liable for an accident resulting to one employee by the failure of a co-employee to observe the rules and enforce them. (D. & R. G. v. Sipes, 23 Colo. 226, 47 P. 287; Moeller v. D. L. & W. R. Co., 43 N.Y.S. 605.) This last case is exactly like the one at bar on all the main points. (Peterson v. Chicago & N.W. Rd. Co., 67 Mich. 102, 37 N.W. 260; Renfro v. C. R. I. & P., 86 Mo. 302; Lundwuist v. Duluth St. Ry. Co., 65 Minn. 387, 67 N.W. 1006; McDonald v. N.Y. Cent. & H. R. Rd. Co., 63 Hun 587; Henry v. Lake Shore, etc., Rd. Co., 49 Mich. 495, 13 N.W. 832; Terre Haute & I. Ry. v. Leeper, 60 Ill.App. 194.)

The plaintiffs are not entitled to recover because of the negligence of the deceased in failing to make use of the flag in accordance with the rule, of which he had knowledge. There is no contention made in this case nor any proof to sustain such contention, if it were made, that the deceased did not know of the rule or its terms. On the contrary the proof shows absolutely that he had actual knowledge and familiarity with it. His failure to observe it under such circumstances was therefore negligence. The case of Ala. G. S. Rd. Co. v. Roach, 110 Ala. 266, 20 So. 132, is precisely like the case at bar upon all main points even to the contention that the rules had been disregarded and therefore waived.

To the same effect, and all being cases of car repairers injured as a result of no flag being displayed in accordance with the requirements of a rule, see the following cases: (Cent. Rd. & Bkg. Co. v. Kitchens, 83 Ga. 83, 9 S.E. 827; Ill. Cent. Rd. Co. v. Winslow, 56 Ill.App. 462; Moeller v. Del. L. & W. R. Co., 66 N.Y.S. 882; Renfro v. C. R. I. & P. 86 Mo. 302; Sheridan v. L. I. Rd. Co, 57 N.Y.S. 1075; Hulion v. Chicago N.W. Rd., 107 Wis. 122, 82 N.W. 710; Bruen v. Uhlmann, 60 N.Y.S. 222; 1 Labatt on Master and Servant, pp. 952 to 957, and notes.)

And finally the defendant is not liable in this case for the further reason that under all the facts the deceased knew the conditions surrounding his work and knew how it was done by himself and his foreman and those working with him, and knew the rules and what they called for. If, therefore, there was any negligence in the way the work was being done by those about him, or in the method and system, he had better information as to that than the defendant. He had actual knowledge of it and the risks and dangers to which he was exposed, and therefore assumed them. (Faulkner v. Mammoth Mining Co., 23 Utah 437; Anderson v. Daly Mining Co., 16 Utah 28; Fritz v. Electric Light Co., 18 Utah 493; Christensen v. R. G. O. W. R. R. Co., 74 P. 876; Baker v. Barber Asphalt P. Co., 92 F. 117; Kansas City S. R. Co. v. Billingslea, 116 F. 335; Terry et al. v. Schmidt, 116 F. 627; Bunker Hill & S. Mining Co. v. Kettleson, 121 F. 529; Southern P. Co. v. Seley, 152 U.S. 145; Kohn v. McNulta, 147 U.S. 238; Tuttle v. Detroit, etc., Ry. Co., 122 U.S. 189; Sullivan v. India Mfg. Co., 133 Mass. 396; Gilbert v. Guild, 144 Mass. 601; Ladd v. New Bedford R. R. Co., 119 Mass. 412; s. c., 20 Am. Rep. 331; Lovejoy v. Boston & Me. R. R., 125 Mass. 79; s. c., 23 Am. Rep. 206; Titus v. Bradford, B. & K. R. R. Co., 136 Pa. 618, 20 Am. St. Rep. 944; Sweeney v. Berlin & Jones Envelope Co., 101 N.Y. 520; Williams v. D. L. & W. R. R. Co., 116 N.Y. 628; Unfried v. B. & O. R. R. Co., 34 W.Va. 260; 12 S.E. 512; L. S. & M. R. R. Co. v. Knettal, 33 Ohio St. 468; L. & N. R. R. Co. v. Boyant, 22 S.W. 606; Little Rock & M. R. R. Co. v. Barry, 84 F. 944; G. C. & S. F. R. R. Co. v. Williams, 39 S.W. 967.)

Rogers & Street and L. W. Lockhart for respondents.

RESPONDENT'S POINTS.

The trial judge properly instructed the jury as follows:

"It is the duty of the master when the nature of the business requires it, to make and promulgate rules for the protection of his servants and to use due care and diligence after the making and promulgating of a necessary rule to have it enforced; and if you should find from the evidence in this case that the nature of the defendant's business was such as, in the exercise of due care and prudence for the safety of its employees, required the making and promulgating of rules, and should further find that the defendant failed to make and promulgate such rules, or having made and promulgated the same, failed to use due care and diligence to have them enforced and should further find that the injuries, if any, received by the deceased, and which resulted in his death, were caused by such failure, you should find for the plaintiffs." This clear and lucid statement of what has now in this State become settled law was not only correct as law, but was most applicable to the issues in the case, and the evidence adduced. (Pool v. S. P. Co., 20 Utah 210; Boyle v. U. P. R. R. Co., 25 Utah 422; Konold v. R. G. W. Ry. Co., 21 Utah 381; Wright v. S. P. Co., 14 Utah 383; Hough v. Railway Co., 100 U.S. 213; Wabash Ry. Co. v. McDaniels, 107 U.S. 454; Abel v. Del., etc., Canal Co., 103 N.Y. 581; s. c., 128 N.Y. 662; Doing v. R. R. Co., 151 N.Y. 579; Whitaker v. Canal Co., 126 N.Y. 544; Strong v. R. R. Co., 94 Iowa 380; White v. R. R. Co., 72 Miss. 12; R. R. Co. v. Triplett, 54 Ark. 289; R. R. Co. v. Echols, 87 Tex. 339; R. R. Co. v. Hissong, 97 Ala. 187; Warn v. R. R. Co. 92 Hun 91; 1 Shearman and Redfield on Neg., sec. 202; 1 La Batt, Master and Servant, secs. 214 and 219.)

"When the master has habitually, either expressly or tacitly sanctioned the violation of the rules, or for any reason suspended them, he cannot interpose such violation to defeat a recovery." (Boyle v. U. P. R. R. Co., 25 Utah 420.) "Where a certain rule of the employer, though established for the safety of the employee, has been habitually disobeyed since its inception, or for a long period of time, in the presence or to the knowledge of the employer, without an attempt to enforce it, or has been disregarded in such manner and for such length of time as to raise a presumption that it was done with his knowledge and approval, the rule will be regarded abrogated or waived." (Wright v. S. P. Co., 14...