Morrison v. San Pedro, L.A. & S.L.R. Co.

Decision Date12 February 1907
Docket Number1782
Citation88 P. 998,32 Utah 85
CourtUtah Supreme Court
PartiesMORRISON v. SAN PEDRO L. A. & S. L. R. Co

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by D. R. Morrison against the San Pedro, Los Angeles & Salt Lake Railroad Company and others. From a judgment for plaintiff against the named defendant, it appeals.


C. C Whittemore, J. W. N. Whitecotton and Pennel Cherrington, for appellant.


We contend that the man Branen, in any light in which the evidence in this case can be considered, was a fellow servant of the plaintiff, and that the court should have so instructed the jury as requested by the appellant in its sixth request. If we are correct in this view, it follows that the court should have given defendant's first request for instructions, wherein it asked the court to charge the jury that the plaintiff was not entitled to recover against any of the defendants. (Stephani v Railroad, 19 Utah 196; Sartin v. Railroad, 27 Utah 447.)

"Prima facie all who enter into the employ of a single master are engaged in a common service and are fellow-servants." And the burden of proving otherwise is on the plaintiff. (Railroad v. Baugh, 149 U.S. 368; 2 Labatt on Master and Servant, sec. 512; Blessing v. Railroad, 77 Mo 410; McGowan v. Railroad, 61 Mo. 528.) According to the decisions of the Supreme Court of the United States, regarding the doctrine of fellow-servants, Branen was the fellow-servant of the plaintiff. (Railroad v. Baugh, supra; Railroad v. Hambly, 154 U.S. 349, 38 Law Ed. 1009; Railroad v. Peterson, 162 U.S. 346, 40 Law Ed. 994; Mining Co. v. Whelan, 168 U.S. 86, 42 Law Ed. 390; Railroad v. Conroy, 175 U.S. 323, 44 Law Ed. 181; Robertson v. Railroad, 78 Ind. 77, 41 Am. Rep. 552; Millsaps v. Louisville N. & T. R. Co., 69 Miss. 423; Railroad v. Hoover, 25 L. R. A. 710; McGowan v. Railroad, supra; Blessing v. Railroad, supra; Harley v. Railroad, 57 F. 144; Sartin v. Railroad, supra; Stephani v. Railroad, supra.)

Powers & Marioncaur for respondent.


The following cases established the doctrine overwhelmingly, that "A duty rests upon railroad companies to establish and promulgate, either by time tables or other suitable means, appropriate and sufficient rules and regulations for the safe running of their trains, and an employee who is charged with this duty is, with respect to its performance, a vice principal. Consequently, it is held that a railroad employee who is vested with the control of the movement of trains is a vice principal, whether he be a train dispatcher, superintendent, or assistant superintendent, division superintendent, telegraph operator, or other employee." (12 Ency. of Law [2 Ed.], p. 967, notes 4 and 5, and notes 1, 2, 3, and 4, on page 968; Crew v. Railroad, 20 F. 87; Railroad v. Camp, 65 F. 952; Clyde v. Railroad, 69 F. 673; Railroad v. Barry, 58 Ark. 198; McKune v. Railroad, 66 Cal. 302; Darrigan v. Railroad, 52 Conn. 285, 52 Am. Rep. 590.)

To the point that the person charged with making rules and regulations for the movements of trains--train dispatchers and train masters--exercise functions which are part of the positive duties of the master, see the following additional authorities: Palmer v. Railroad, 2 Idaho 290, 13 P. 425; Railroad v. Young, 26 Ill.App. 115; Railroad v. Lallen, 84 Ill. 109; Railroad v. Kanaley, 39 Kas. 1; Hunn v. Railroad, 78 Mich. 513; Hankins v. Railroad, 142 N.Y. 416; Slater v. Jewett, 85 N.Y. 62, 39 Am. Rep. 627; Sutherland v. Railroad, 125 N.Y. 737; Lewis v. Seifert, 116 Pa. St. 628, 2 Am. St. Rep. 631; Haynes v. Railroad, 3 Coldw. (Tenn.) 222; Washburn v. Railroad, 3 Head (Tenn.) 638, 75 Am. Dec. 784; Hogan v. Railroad, 40 W.Va. 436; Phillips v. Railroad, 64 Wis. 475; Smith v. Railroad, 92 Mo. 359, 1 Am. St. Rep. 729 (this Missouri case overrules the Blessing Case, 77 Mo. 410, cited by appellant); Railroad v. Frost, 74 F. 965; Railroad v. Heck. (Ind.), 50 N.E. 994 (this case criticises and overrules Robertson v. Railroad, 78 Ind. 77, cited in appellant's brief); Railroad v. Elliott, 51 S.W. 1067, 102 F. 96; Felton v. Harberson, 104 F. 737, 44 C. C. A. 188; Railroad v. Mix, 121 F. 476; Brommer v. Railroad, 54 A. 1092, 205 Pa. 432; Railroad v. Holmes, 136 F. 66.

ERICKSON, District Judge, delivered the opinion of the court. McCARTY, C. J., and FRICK, J., concur.



Respondent sued to recover damages for injuries received in and about the face and head, destroying the sight of one eye and greatly impairing the sight of the other, and otherwise injuring and disfiguring him about the face, and otherwise bruising and injuring him, which said injuries he believes to be permanent and lasting, and have and will in the future bar and prevent him from following his usual occupation, that of engineer, and will render him unable to earn a livelihood for himself as theretofore, and will in the future cause him to suffer great pain and mental anguish; all of which he alleges to have been due to the negligence of the defendants while he was in their employ in the capacity of a locomotive engineer. The defendant the San Pedro Construction Company was never served with process in the action, and no appearance was ever made for it. A verdict of no cause of action was returned in favor of the defendant the Empire Construction Company under the instruction of the trial court, and a verdict and judgment rendered against the appellant, San Pedro, Los Angeles & Salt Lake Railroad Company, for damages in the sum of $ 7,000; and this appeal is prosecuted to reverse the said verdict and judgment.

The record discloses substantially the following facts: The appellant was engaged in constructing a railroad from Caliente west in the state of Nevada. Between Caliente and Moapa, a distance of about 85 miles, there was a single track, with here and there turnouts and switches. The railroad was in process of construction between Caliente and Moapa, and west of Moapa. It was constantly necessary to run trains between Caliente and the west end of the road, as far as the work had progressed. The country through which the road was building was rough and mountainous, and the right of way lay through many deep canyons, and the curves were long and numerous. There were no regular hours for the movements of trains, with the exceptions of two regular trains each way every day. The trains being used for the transportation of workmen and material, known as "work train extras," moved east and west as the exigencies of the work required. About the 1st of March, 1904, the respondent went to work for appellant at Caliente, in the state of Nevada, in the capacity of locomotive engineer, and ran what was called a "work train" between various points west of Caliente, up to and until the 17th day of August, 1904, the date when he received the injuries complained of. From Caliente west there was no system of telegraph or telephone, so that the trains engaged on the work of construction did not run with any regularity; and the only method of operating the trains was by bulletin orders, which were written out and delivered to the engineers and conductors of the various trains by an employee known as and who was a general foreman, or trainmaster. At the time when respondent first went to work at Caliente, and beyond, up till between the 1st and 15th of June, 1904, one McDermott issued those orders. Thereafter for about a month, John Conway issued and signed the bulletin orders; but after July 15, 1904, till the time of the collision, when respondent was injured, a man by the name of William Branen (W. F. Branen) issued all the bulletin orders regulating the running of work trains extra. Respecting these bulletin orders respondent testified that he remembered the first one issued by Branen was the annulment of all orders issued up to that time; and afterwards he received other bulletins, among them the following one: "Bulletin Order No. 3. Caliente, Nevada, July 18, 1904. All Concerned: Bulletin No. 3. In effect July 21, from Caliente to end of track. All previous bulletins are annulled. All work trains extra east-bound will have right of track over all west-bound work trains extra between 12 K. noon and 12 K. midnight. All work trains extra west-bound will have right of track over all work trains extra east-bound between 12 midnight and 12 o'clock noon. W. F. Branen, Trainmaster." On August 17, 1904, the respondent was running what was known as "work train extra 501," and left siding 60, which was 60 miles west of Caliente, at 1 o'clock p. m., for the purpose of taking an injured man, one of the laborers, to Caliente to the doctor. On the same day another train, known as "work train extra 636," had gone from Caliente west, a distance of 20 miles, where was camped a gang of laborers, which it picked up, and where the train was loaded with rock for use in construction work. The crew of this latter train consisted of the engineer, a fireman, and a conductor, and William Branen. After loading the train with rock, it went back east towards Caliente, and stopped at a point about 2 1/2 miles west of Caliente. Branen directed the train crew to place the various cars. In the afternoon work train extra 636, bearing Branen and the other employees mention, went about 14 miles east of camp to bridge 7. It remained there about an hour; then went farther east to bridge 4. It remained there, standing on the main line, perhaps an hour and a half. When the train started west, towards camp, the entire crew got on. Branen got on at the east end of the train, but immediately walked to the west end, and there took a position on the platform of the caboose, where he remained while the train ran from bridge 4, from which place...

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