Missouri Pacific Railway Company v. Lyons
| Decision Date | 21 April 1898 |
| Docket Number | 7849 |
| Citation | 75 N.W. 31,54 Neb. 633 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY v. MARY LYONS, ADMINISTRATRIX |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before FERGUSON, J. Reversed.
RESERVED AND REMANDED.
John C Watson, James W. Orr, and B. P. Waggener, for plaintiff in error.
T. J Mahoney, contra.
OPINION
Contentions and citations of counsel appear in the opinion.
The switch yard of the Missouri Pacific Railway Company at Omaha, Nebraska, extends north and south, is more than a quarter of a mile in length, and it is down grade from the south end thereof. This switch yard is covered with a net-work of tracks. The first four, counting from the east side of the yard, are called the main-line track, the old main-line track, the train track and the west track, respectively. June 11, 1893, two shifting engines and crews were at work in this yard. The crew working in the south part of the yard was composed of the engineer and fireman of the switch engine and George Duncan, James Mordant, and Samuel Deems. Duncan was the foreman of the south crew. The crew working in the north end of the yard was composed of the engineer and fireman of the switch engine and B. F. Miller, John R. Hughes, and George Lyons, Miller being the foreman of that crew. All the men in both these crews were subject to the direction and control of the master of the switch yard, named Kennedy. He seems to have employed the men and had authority to discharge them. From day to day he determined what men should work in the switch yard and in what part of the yard each crew should work. The foreman of each crew had the direction of the men under his charge as to how the work should be done and what each should do, but was vested with no other control of the men under him. No person in one crew had any direction or control over the members of the other crew. While each crew was assigned to work at a particular end of the yard, this seems to have been a matter of convenience, as either crew was at liberty to go to any part of the yard if the business in hand required. Both crews were engaged in transferring cars from one track to another, the crew at the south end taking cars from certain tracks or sidings, putting them on one of the tracks already mentioned, and running the cars down toward the north end of the yard, and there turning them over to the crew at work in the north end for further disposition. As it was down grade from the south to the north end of the yard it was customary, when a car was put on a track to go to the north end of the yard, for either Deems or Mordant to "ride the car down." On the date above stated, and at the time of the happening of the casualty hereinafter referred to, there were a number of cars standing on the train track, the third track from the east side of the yard, and standing pretty well down toward the south end thereof. A coal car was standing on the old main track pretty well toward the south end of the yard. Lyons, one of the north crew, was standing west of the west track; or, in other words, there were four tracks between him and the old main-line track. The north crew switching engine was on the old main-line track pretty well down toward the north end of the yard. With things in this situation, the crew at the south end of the yard switched a box car loaded with coal on the old main-line track. As this car started down the grade Deems, one of Duncan's crew, was about to board it for the purpose of "riding it down," when Duncan said to him: "Let that car go; let Jimmie [that is Mordant, the other man helping him] catch some of these cars." For some reason, not clearly shown by the record, Mordant did not "ride the car down," and it went down without any one upon it, came in contact with the coal car, loosened the brakes thereon, and both cars started down the old main-line track toward the north end of the yard. The foreman of the crew in the north end, seeing these two cars, "hallooed" to warn the men on the switch engine of the approaching cars. Lyons, presumably for the same purpose, ran east toward the old main-line track, and, either because he did not observe the proximity of the two loose cars or because he attempted to board them, was struck by one of those cars and injured, from the effects of which he died. His widow, as administratrix, brought this suit against the railway company for damages. She had a verdict and judgment, to reverse which the railway company has prosecuted here a petition in error.
1. The administratrix in her petition claimed that the railway company had been guilty of negligence in employing or retaining in its employ Deems and Mordant, two of the men of the south crew, knowing that they were incompetent. We do not understand that the judgment in this case rests upon a finding made by the jury that the railway company was guilty of negligence in employing or retaining in its employ these two men, and the evidence in the record before us would not sustain a finding that the railway company had been guilty of negligence in employing or retaining in its employ either of these two men.
2. The administratrix also claimed in her petition that the proximate cause of the death of her husband was the negligence of the foreman, Duncan, in permitting this box car loaded with coal to run down the old main-line track with no one on it to control and stop it. We assume, for the purposes of this case only, that Duncan's permitting this box car loaded with coal to run down this track without some one on it to control and stop it was negligence and that this negligence was the proximate cause of the death of Lyons.
3. It is strenuously insisted by counsel for the railway company that Lyons' untimely death was the result of his own negligence; that he was standing some distance west of the old main-line track on which the two wild cars were running when he first discovered them; that he was in a place of safety and that he voluntarily ran to the track on which the two cars were moving, and by reason of neglecting to observe their proximity to him or while attempting to board them received his injury; that his presence at the place where he was injured was not due to an order of his foreman nor made necessary by any of the demands of his employment, and, therefore, the finding of the jury that Lyons' injury was not the direct result of his own negligence is unsustained by sufficient evidence. But when we consider the circumstances surrounding Lyons at the time he left the place of safety, the two cars running down grade toward an engine standing upon the same track on which were an engineer and fireman, the certainty of a collision unless the cars were stopped, and the probabilities that if a collision occurred not only would there result a destruction of the property of the railway company but perhaps the loss of human life, we are not disposed to disturb the jury's finding which acquitted Lyons of negligence. Imprudent and unwise his conduct may have been, unselfish it certainly was, but, when examined in the light of all the surrounding circumstances, we cannot say as a matter of law that it was negligence. (Omaha & R. V. R. Co. v. Krayenbuhl, 48 Neb. 553, 67 N.W. 447.)
4. The district court instructed the jury as follows: "I instruct you, gentlemen, that on the 11th day of June, 1893 the foreman, Duncan, and Lyons were not fellow-servants within the rule that exempts the master from liability for the negligence of one fellow-servant causing injury to another, but, on the contrary, said Duncan was intrusted by the defendant with the control of such a part of the defendant's business as impressed upon him the duty of so conducting said part of said business as not to negligently or carelessly subject other servants of the company to unusual and unnecessary danger, and if you find from the evidence that said Duncan was guilty of negligence in the discharge of said duty, such negligence is chargeable to the defendant." To the giving of this instruction the railway company excepted. Counsel for the administratrix concedes that if this instruction was erroneous the judgment must be reversed. It was doubtless the doctrine of the common law that a master was not liable for an injury inflicted upon one servant through the negligence of a fellow-servant. This is the English rule and, except where modified by statute, is the doctrine of the American courts. This doctrine results from the nature of the contract between the employer and the employe. When one enters the employment of another agreeing to serve him for a stipulated salary or wage he thereby assumes, in the absence of an express contract to the contrary, the ordinary perils incident to that service, and included in these is the liability to injury at the hands of a negligent fellow-servant. The doctrine was thoroughly discussed by Evans, J., in Murray v. South C. R. Co., 26 S.C. L. 385, 1 McMul. 385, and by Shaw, C. J., in Farwell v. Boston & A. R. Co., 4 Met. [Mass.] 49, the two leading cases in this country; and the rule is there declared to be founded not only upon principles of justice but upon considerations of public policy as well. To this general rule exempting the master from liability for the injury of one servant caused by the negligence of a fellow-servant there is this exception: The master himself must not have been guilty of negligence in the selection or retention of the offending servant, tool, or appliance. To bring the master within the protection of the rule the relation existing between the...
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