Pool v. Southern Pacific Co.

• Citation: 7 Utah 303,26 P. 654
• Court: Supreme Court of Utah
• Decision Date: 18 April 1891
• Parties: MALOLA POOL, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

26 P. 654

7 Utah 303

MALOLA POOL, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

Supreme Court of Utah

April 18, 1891

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Case reversed, and a venire de novo awarded.

Messrs Marshall and Royle, for the appellant.

Mr. E M. Allison, Jr., and Messrs. Kimball and White, for the respondent.

MINER J. ZANE, C. J., and ANDERSON, J. concurred. BLACKBURN, J dissenting.

OPINION

MINER, J.:

This action was brought by the plaintiff, as administratrix of the estate of Joseph S. Pool, deceased, to recover damage for the alleged negligent killing of Joseph S. Pool while repairing a car in defendant's yard at Ogden, Utah, September 12, 1888. The action was tried with a jury in the first district court at Ogden, April 4, 1890, and a verdict rendered in favor of plaintiff for the sum of $ 10,000. This defendant assigns as error: (1) Contributory negligence on the part of the deceased, Joseph S. Pool; (2) that Switchman Kilpatrick was a fellow-servant of deceased, and his contributory negligence, if any, caused the death of the deceased, who was a fellow-servant at the time; (3) excessive damages; (4) errors in the instructions of the court to the jury.

The undisputed facts in the case show that at the time of the accident in question the deceased, Joseph S. Pool, together with two co-laborers, named Powers and Rice, were engaged as car-repairers for the defendant at their shops at Ogden, under the orders of Mr. Starr, their foreman. That on the day in question Powers and Pool were ordered by Starr to repair a car on the repair track No. 1 in defendant's yard, where it was customary to make slight repairs to cars. At this place there were six or seven parallel tracks besides the main track on defendant's line. That Pool and Powers were engaged in repairing this car in question, and they were in a position under the car near the draw-bars, between the rails of the track, when the noise of an approaching switchengine warned them of their dangerous position.

Plaintiff produced one Frank J. Powers, who testified in substance that he heard a noise, and remarked to Pool, who was under the car: "'I have an idea that they are coming.' He said, 'Yes; they are coming in here.' Says I, 'Let's get out;' and Pool immediately moved to get out on the east side of the car. Mr. Rice [the co-laborer] was standing by the side of the car, outside of the track; and I told him in the hearing of Pool to go and stop the engine and caboose, and not let it hit the car. I told him the car could not go out until it was repaired. Rice said, 'All right,' and then he stepped down to the other end of the car, and made signal to stop the engine. The engine came down within six feet of our car and stopped. I heard Rice tell somebody not to hit the car; that we were working on it. As soon as I heard that order given I went to work with Pool under the car. I felt uneasy, however, and I looked out soon after, and saw one of the yardmen, Kilpatrick, giving a signal to back up. I said to Pool, 'Look out, Pool; they are right on us;' and I threw myself over the rail, and was injured. After I got out I saw Pool lying between the two cars badly injured. He died soon afterwards. The cars came together with great force, and caught Pool between them. The engineer on the engine was Mr. Weaver; the fireman was Mr. Purdy; the switchman and brakeman were Benjamin Kilpatrick and William Taylor. At the time of the accident, they, Kilpatrick and Taylor, were standing about one hundred feet from us. Kilpatrick was acting as one of the switchmen. We both relied on Rice seeing that the engineer was notified that we was under the car, and we thought he would attend to it. We put out no red flag as a signal to the engineer before we went under there. Such flag would have notified the engineer. We didn't do it because it was too much work, and we thought it would only take a few minutes to make the repairs; and we also knew that I had told Rice to warn the engineer to watch us, and not to back up. I heard Rice tell the switchman, Kilpatrick, not to hit the car; and supposed that they would not do so. I heard Rice tell the switchman not to hit the car, and that was satisfactory to me. I heard Rice talking to the switchman, Kilpatrick,--I think it was Kilpatrick,--and I think Kilpatrick, the switchman, signaled the engineer to back up after he had been warned not to do so by Rice.

Kilpatrick was a brakeman in the yard, and was sometimes called a switchman. He attended to switching in the yard, and doing ordinary work of a brakeman, and helps to make up trains, and gives signals to engineers to back up and start. Kilpatrick gave the signal to back up, and that caused the accident. Kilpatrick was acting at the time under orders from the yard-master. The duty of the car-repairers was to obey the foreman's orders, and work in the shop, and make small repairs in the yard occasionally. When Rice spoke to and warned Kilpatrick, the engine was about twenty feet away, and I was under the car with Pool, and heard Kilpatrick make some reply to Rice." George C. Rice, a witness produced by the plaintiff, testified, in substance, "that at this time Kilpatrick was riding on the steps on the forepart of the caboose as this engine backed down towards our car. I told Kilpatrick, the switchman, not to attach to the car,--not to hit it; that there were men working under the car. The engine came to within six feet of this car being repaired, and stopped after this notice by Rice to Kilpatrick. Soon after this Kilpatrick gave a signal to the engineer for it to come back. The engine came back with great force, and Pool was injured and killed." The defense offered no proof, and Kilpatrick was not sworn in the case. Pool was an able-bodied man, of good character, 29 years of age at the time of his death, and was receiving $ 75 per month from the defendant, and had a wife and several children dependent upon him for support. The jury found as special findings of fact, upon questions submitted to them by the court, that Kilpatrick was negligent in the discharge of his duty as switchman in giving signals to the engineer to back his engine down against the car under which the deceased, Pool, was working, knowing when he gave such signal that Pool was working under the car. They also found that at the time of the injury Pool was using such precaution and care to avoid injury as a prudent man, in the exercise of due care should do; and that Kilpatrick was not a fellow-servant of Pool.

From the testimony given in the case we are satisfied that Kilpatrick was not a fellow-servant of the deceased, but was then engaged in a different kind and department of service, and was not in the same common employment, and was under the orders of a different master. Nor can there be any question made but that Kilpatrick heard the signal from Rice to stop the engine, and that he acted upon such signal, and did stop the engine about six feet from the car in question, under which the deceased was working at the time. The signal was understood by the switchman, Kilpatrick, and obeyed by him. The verbal communication to Kilpatrick to stop the engine was a notice and warning as certain, positive, and safe as if there had been a red-flag signal used in such case. In any event, Kilpatrick received it, understood it, and replied to it, and complied with it at the time, and he would have done no more had there been a red-flag signal placed by the car. Powers and the deceased, Pool, assumed, as they would have a right to assume under the circumstances, and as the jury found, that there would be no danger in proceeding with their work, and before they had completed it Kilpatrick, the switchman, with notice of their position and danger, and without giving any warning, negligently gave the signal to back up, and the engine immediately backed up with great force, and Pool was caught between the cars and killed. "An employer is not liable for injuries to his servant caused by the negligence of a fellow-servant in a common employment; but this exemption does not extend to injuries caused by the carelessness or negligence of another person in the master's service in an employment not common to that in which the person injured is engaged, and upon a subject in regard to which the person injured has a right to look for care and diligence on the part of the other person as the representative of a common master." Daniels v. Railway Co., 6 Utah 357, 23 P. 762; Railroad Co. v. Kelly, 127 Ill. 637, 21 N.E. 203; Railway Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, 28 L.Ed. 787; Morton v. Railway Co., (Mich.) 46 N.W. 111; Railway Co. v. Morgenstern, 106 Ill. 216; Kane v. Railway Co., 128 U.S. 91, 9 S.Ct. 16, 32 L.Ed. 339; Reddon v. Railway Co., 5 Utah 344, 15 P. 262; Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Railway Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755.

The special instructions were properly submitted by the court to the jury, and their findings under the evidence should not be disturbed. Comp. Laws 1888, §§ 3374, 3978; Webb v. Railway Co., ante, 7 Utah 17, 24 P 616. So, also, we think the question of negligence or contributory negligence was properly submitted to the jury. In such cases, in order to determine whether an employe, by recklessly exposing himself to peril, has failed to exercise that degree of care for his personal safety that might reasonably be expected, has thus by his own negligence contributed to cause the accident, regard must always be had to the circumstances of the case, and to the exigencies of his position; and the decision of this question ought not to be withheld from...