Missouri Pac. Ry. Co. v. Peregoy

• Decision Date: 06 May 1887
• Citation: 14 P. 7,36 Kan. 424
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. ELIZABETH PEREGOY, as Administratrix of the Estate of James W. Peregoy, deceased
• Court: Kansas Supreme Court

14 P. 7

36 Kan. 424

THE MISSOURI PACIFIC RAILWAY COMPANY v. ELIZABETH PEREGOY, as Administratrix of the Estate of James W. Peregoy, deceased

Supreme Court of Kansas

May 6, 1887

Error from Labette District Court.

ACTION begun October 4, 1883, by Elizabeth Peregoy, as administratrix of the estate of James W. Peregoy, deceased against The Missouri Pacific Railway Company, to recover damages for the killing of her son, the said James W Peregoy, who had been an apprentice employed in the defendant's railway machine shops at Parsons, Kansas, and had been so employed for about two months. The petition substantially alleged, among other things, that on June 19 1883, one Gottlieb Wirth, who was also an apprentice employed in said shops, was drilling an engine frame, a large frame of iron weighing about two thousand pounds; that the frame was standing on its edge, one end resting on the drill-plate and the other on a trestle; that it was necessary for Wirth to move the frame, and for that purpose he called Peregoy and another employe to assist him in so doing, and also to move the trestle under the frame nearer the drill; that Wirth and the other person attempted to lift the frame with a bar, and Wirth directed Peregoy to move the trestle, which he attempted to do; that the frame fell and struck Peregoy, and killed him instantly. The petition further alleged that Wirth was directed by one Wood, who was foreman in that part of the shops and had charge of the machine operated by Wirth, to call on Peregoy for help in moving the frame, and Peregoy was directed to assist whenever called upon; that one Haines was master mechanic, and in general charge of the shops; that both Wirth and Peregoy were boys about seventeen years old and had never worked in machine shops, except in defendant's for a short time; that the work on this frame was the only experience each had ever had in handling engine frames or other heavy pieces of iron, and that neither was instructed by persons in charge of the work that the handling of said frames was dangerous, or that it required great care and attention to avoid accidents; that at the time the frame fell the clamp provided to hold the frame had been removed by Wirth; that both Haines and Wood had been at the drill while Worth was drilling, when the clamp was not fastened to hold the frame, and made no direction to Wirth about fastening the clamp on to secure the frame from falling.

Trial at the May Term, 1885. The jury rendered a verdict for the plaintiff for $ 3,000 damages, and also made special findings of fact upon certain questions submitted by the parties to the action. New trial denied, and judgment for the plaintiff. The defendant brings the case here.

Judgment affirmed.

David Kelso, for plaintiff in error.

Kimball & Osgood, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

There is no substantial dispute in this case about the facts, but only as to the mixed questions of law and of fact. Plaintiff in error assigns many errors which we will try to take up in their order; but first we will say that many of the errors complained of are covered and cured by the general rule that where the findings of fact are consistent with each other and consistent with the general verdict, and are supported by some evidence, this court will not disturb or set aside the judgment founded thereon. This rule will dispose of the first error suggested by the learned counsel for the defendant, that there was an entire absence of evidence to support the finding of the jury "that it was necessary to remove the clamp to move the engine frame." On this question there was testimony: The evidence of Wirth that he could not move the frame where he wanted it without taking off the clamp; Haines and Wood had been there a short time before when the clamp was off, and had made no order or direction about putting the clamp on; and Haines testified that by putting on another clamp on the other side of the frame the frame could have been moved without danger of falling; but nowhere was it shown that other clamps were furnished, or that Wirth was instructed about putting them on, while Wirth testified that no other clamp was furnished to put on the other side. There was some other evidence, tending to show that the frame could have been moved without taking off the clamp; that by loosening the burr the frame could not fall, yet could be moved. To weigh and determine this testimony was the proper province of the jury. They having found in favor of the plaintiff, their finding will not be disturbed. ( American Bridge Co. v. Murphy, 13 Kan. 35; Railroad Co. v. Doyle, 18 id. 58.)

The learned counsel also complains of this instruction given by the court to the jury:

"If Wirth was vested with full power to command the services of the deceased, and directed what he should do and how he should do it, and the whole management thereof and the direction of the deceased were vested in said Wirth, the defendant and superior servants reserving no discretion in themselves as to the direction of the work, then the act of Wirth is the act of the defendant and not of a fellow-servant."

In this instruction we see no error. The evidence in support of it was that Wirth was instructed to call to his assistance the deceased, and this direction was from Wood, the foreman, who was in the immediate control of the machinery and the men in that part of the shop; and Peregoy was directed to obey that call from Wirth and do as he was directed. This was the admitted relation between Wirth and the deceased. Wirth, under this direction from Wood, who was by the defendant placed in control of the men there at work, delegated a part of that authority to Wirth, and Wirth, under and by virtue of that authority, directed the deceased to move the trestle, in doing which he lost his life. As to the liability of the employer, it made no difference if Wirth knew that the clamp ought to be put on before attempting to move the trestle: if he did know this and neglected and omitted doing so, such negligence was the negligence of the employer. We concede the general rule to be that the negligence of a fellow-servant is one of the risks assumed by the employe, and for which the employer is not liable; but there are exceptions to this general rule, and where the employer places an employe under the control and direction of another, and the latter, in the exercise of the authority so conferred, orders the former into a place of unusual danger, and thus exposes him to extraordinary peril, of the existence and extent of which he is not advised, the master is liable; and we think this case comes within the exceptions to the general rule. Here the employer placed deceased under the direction and control of a co-laborer, and was ordered by him to move a trestle, to do which would place him under the engine frame, a place of hazard and danger of which he was entirely ignorant.

Mr. Justice VALENTINE, in K. P. Rly. Co. v. Salmon, says:

"These officers, agents or servants of the company upon whom such powers are bestowed are...