Neal v. Northern Pacific Railroad Co.
| Decision Date | 25 May 1894 |
| Docket Number | 8672 |
| Parties | Thomas G. Neal v. Northern Pacific Railroad Co |
| Court | Minnesota Supreme Court |
Argued May 15, 1894
Appeal by defendant, Northern Pacific Railroad Company, from an order of the District Court of Ramsey County, John W. Willis J., made October 25, 1893, denying its motion for a new trial after verdict for plaintiff, Thomas G. Neal, for $ 18,525.
Order reversed.
J. H Mitchell, Jr., T. R. Selmes and C. D. & Thos. D. O'Brien for appellant.
The conclusion of the jury that the plaintiff and the quarry crew were not fellow servants has no possible weight, for it is not left to a jury to define who are or who are not fellow servants. When the facts are in conflict and when in the law upon one state of facts the relation of fellow servant may exist, while upon the other side it does not exist, then the jury are at liberty to find the fact and upon that finding the law bases its conclusion as to the legal relation of the parties. But here there was no conflict of fact. The plaintiff's statement of the situation so far as his relation to the other men was concerned is absolutely accepted, and there is no pretense upon the part of the plaintiff that Stout, the boss in charge of the work, was a vice principal, or that if he was his negligence in anywise contributed to the injury. In view of the entire concurrence of all of the authorities upon this point we content ourselves with a reference to some of them. Lindvall v Woods, 41 Minn. 212; Bergquist v. City of Minneapolis, 42 Minn. 471; Fraser v. Red River Lumber Co., 45 Minn. 235; Marsh v. Herman, 47 Minn. 537; Brown v. Winona & St. P. R. Co., 27 Minn. 162; Olson v. St. Paul, M. & M. Ry. Co., 38 Minn. 117; Foster v. Minnesota Cent. Ry. Co., 14 Minn. 360; Fraker v. St. Paul, M. & M. Ry. Co., 32 Minn. 54; Collins v. St. Paul & S. C. R. Co., 30 Minn. 31; Connelly v. Minneapolis E. Ry. Co., 38 Minn. 80; Brown v. Minneapolis & St. L. Ry. Co., 31 Minn. 553; Roberts v. Chicago, St. P., M. & O. Ry. Co., 33 Minn. 218; Gonsior v. Minneapolis & St. L. Ry. Co., 36 Minn. 385; Chamberlain v. Milwaukee & M. Ry. Co., 7 Wis. 425; Moseley v. Chamberlain, 18 Wis. 700; Cooper v. Milwaukee & P. R. Co., 23 Wis. 668; Howland v. Milwaukee, Lake Shore & W. Ry. Co., 54 Wis. 226; Dwyer v. American Exp. Co., 55 Wis. 453; Blazinski v. Perkins, 77 Wis. 9; Johnson v. Ashland Water Co., 77 Wis. 51; Peschal v. Chicago, M. & St. P. Ry. Co., 62 Wis. 338; Chapman v. Erie Ry. Co., 55 N.Y. 579; Dewey v. Detroit, G. H. & M. Ry. Co., 97 Mich. 329; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368; Potter v. New York Cent. & H. R. R. Co., 136 N.Y. 77; Corneilson v. Eastern R. Co., 50 Minn. 23; Stutz v. Armour, 84 Wis. 623; Schaible v. Lake Shore & M. S. Ry. Co., 97 Mich. 318.
M. E. Clapp and McDonald & Barnard, for respondent.
At the time of the accident the plaintiff was in the employ of the Northern Pacific Railroad Company as a telegraph line repairer having charge of a division of telegraph line extending from Palmer to Ellensburg. It consisted of four wires, one used by the train dispatcher, and the quadruplex wire. At the time of the accident the dispatcher's wire had been repaired and plaintiff was in the act of repairing the others. The railroad company was engaged in cutting out rock for ballasting. The rock was to be hauled some distance from the point at which it was gotten out. The crew in the act of blasting knocked the wires down. While engaged in repairing or replacing the wires plaintiff was injured by a rock rolling down upon him occasioned by the carelessness of one of the blasting crew. The men engaged in blasting were under the control of a Mr. Stout who had no control whatever over the plaintiff, he being at work under the instructions of one Mason, the assistant general superintendent of the telegraph line department. Without reviewing at any length the labyrinth of cases upon this question, we submit that plaintiff and the blasting crew were not fellow servants. Chicago & N.W. Ry. Co. v. Moranda, 93 Ill. 302; Hobson v. New Mexico & A. Ry. Co., 28 Am. & Eng. Railroad Cas. 360; Dixon v. Chicago & A. R. Co., 109 Mo. 413.
The verdict was not excessive. Flanders v. Chicago, M., St. P. & O. Ry. Co., 51 Minn. 193; Ehrman v. Brooklyn City R. Co., 131 N.Y. 576; Worthen v. Grand Trunk R. Co., 125 Mass. 99.
Mitchell, J. Buck, J., absent, sick, took no part. Canty, J., concurring.
This action was brought to recover damages for personal injuries caused by the alleged negligence of the defendant. The plaintiff was in the employment of the defendant as telegraph lineman, his duty being to repair defendant's telegraph line at such points as he might be directed. He received his orders from defendant's assistant superintendent of telegraph.
On, and for some time prior to, the date of the accident, the defendant had a crew of men, under the direction of a foreman, engaged in blasting and quarrying rock upon the line of its road in the vicinity of Canton, Wash., for the purpose of using the rock in riprapping injured portions of its line at points some distance from the place where the rock was procured. The place is in a mountainous district along a river, the roadbed being excavated out of the side of the mountain, some little distance above the stream, so that on the upper side of the track there was a steep rock cliff, and below the track a steep decline down towards the river. Defendant's telegraph line was constructed fifteen or sixteen feet below the track, down the embankment. On account of this conformation of the ground, it followed that, when rock was blasted from the cliff on the upper side of the track, detached pieces were thrown across the road down the bank below, which frequently broke down the telegraph poles and lines. After a blast was fired off, it was the duty of the quarrying crew to pile up the loosened and detached rock alongside the track, to be hauled by trains to the place where the rocks were to be used for repairs.
This work had been going on for some three weeks, during which time the plaintiff had been engaged in repairing, whenever necessary, the telegraph line when broken down or injured by the blasting. Any assistance required by him in doing this work he obtained from the quarry crew, upon whom he had a right to call for aid. On the day in question he accompanied the quarry crew to the place where this work was being carried on.
A blast having been fired off, a quantity of stone was thrown upon the track, while some was hurled down the bank, knocking down the wire and a telegraph pole. The plaintiff, in company with one of the quarry gang, proceeded to repair the wire and pole, while the remainder of the men appear to have been engaged in removing from the track, and piling up, the rock which had been detached by the blast. While plaintiff was thus engaged, a large rock rolled against his leg, so injuring it as to render necessary amputation below the knee. So far there is no conflict whatever in the evidence. The only dispute is as to the manner in which the accident occurred. Plaintiff's claim was that one of the quarry crew pried the rock off the railroad track, and rolled it down the embankment, while defendant's contention was that the rock had been previously thrown down the embankment by the blast, and lodged against the foot of the pole which plaintiff was readjusting, and that it was his own efforts to restore the pole which caused the rock to roll against his leg. Which party was right on this point was a question for the jury. The only legal question in the case is whether, on the facts, the plaintiff and the members of the quarry crew were fellow servants within the rule which exempts the master from liability for injuries sustained by one servant through the negligence of another.
The trial court left this question to the jury. As the facts were undisputed, and showed precisely what the respective duties of the plaintiff and of the quarry crew were, and what relation they bore to each other, the question was one of law, and should have been decided by the court. But if, as a matter of law, the plaintiff and the quarry crew were not fellow servants within the meaning of the rule, the error of the trial court in leaving the question to the jury would not be prejudicial to the defendant.
Ever since the "common employment" doctrine was announced in Priestley v. Fowler, 3 Mees. & W. 1, courts and text writers have been attempting to lay down some formula or test by which to determine what servants of a common master are fellow servants within the rule that exempts the master from liability. The books abound in statements that they must be "engaged in the same common pursuit, under the same general control," or "engaged in the same general business, though it may be in different grades or departments of it," or "engaged in the same general employment, working to accomplish the same general end, though it may be in different departments or grades of it." Of course, such definitions are very unsatisfactory, unless we are told what is meant by the expressions "the same common pursuit," "the same general business," etc., for upon the meaning to be attached to these terms the entire question depends.
A few western states, adopting what is termed the "consociation doctrine," hold, in substance, that only those are fellow servants, within the rule, who work side by side, performing the same or similar duties. This doctrine, however, has received but little favor in the courts of either England or America, and, in our opinion, proceeds upon an erroneous theory as to the reason for the rule exempting the master from liability.
At the other extreme may be found some authorities which seem to include...
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