Pool v. Southern Pacific Co.

• Decision Date: 03 July 1899
• Court: Utah Supreme Court
• Parties: MALOLA POOL, ADMINISTRATRIX OF THE ESTATE OF JOSEPH POOL, DECEASED, RESPONDENT v. SOUTHERN PACIFIC COMPANY, A CORPORATION, APPELLANT

58 P. 326

20 Utah 210

MALOLA POOL, ADMINISTRATRIX OF THE ESTATE OF JOSEPH POOL, DECEASED, RESPONDENT v. SOUTHERN PACIFIC COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

July 3, 1899

Appeal from the Second District, Weber county, Hon. H. H. Rolapp Judge.

Action by plaintiff as administratrix to recover damages for the death of Joseph S. Pool, alleged to have been caused by the negligence of defendant. Defendant's motion for a non-suit was denied and a verdict and judgment for plaintiff rendered. Defendant appealed.

Affirmed.

1 Webb v. Railway Co., 7 Utah 357; Daniels v. Railway Co., 6 Utah 357; Dryberg v Mercur Co., 18 Utah 410; Armstrong v. Railway Co., 8 Utah 420; Openshaw v. Railway Co., 7 Utah 307; Same Case, 160 U.S 438; Stephani v. Southern P. Co., 19 Utah 196, distinguished.

2 See Wilson v. Sioux Con. Mng. Co., 16 Utah 392.

Messrs. Marshall, Royle and Hemstead, for appllants.

David Evans, Esq., L. R. Rogers, Esq. and W. R. White, Esq., for respondent.

BASKIN, J. BARTCH, C. J., concurs in the result. MINER, J., concurring in the judgment.

OPINION

BASKIN, J.

This is an action in which the plaintiff seeks, as administratrix of Joseph S. Pool, deceased, to recover damages for the death of the said deceased, alleged to have been caused by the negligence and carelessness of the defendant and its servants, while the deceased, as an employee, under the direction of the defendant, was engaged in repairing one of the defendant's cars.

Among other allegations, not necessary to mention, the answer denied the negligence and carelessness charged in the complaint, and alleged "That the said deceased was injured while performing services not within the scope of his employment, and through and by reason of his own carelessness and disregard for the orders of defendant, and of ordinary care and caution, and by the like carelessness of his fellow-servants, and for which, and for whom this defendant is in no wise responsible."

When the plaintiff rested, the defendant moved for a non-suit on the following grounds:

First. "That no negligence had been shown on the part of the defendant.

Second. "That negligence had been shown on the part of the deceased.

Third. "That any other negligence intervening other than that of the deceased, was that of a fellow servant."

The motion for a non-suit was denied, and the defendant declined to offer any testimony. Thereupon the case was submitted to the jury on the evidence of the plaintiff. The jury returned a verdict in favor of plaintiff, and assessed the damages at $ 12,000.00, for which judgment was rendered.

A motion for a new trial was made by the defendant, which being overruled, an appeal to this court from the final judgment was taken by the defendant.

A motion for a non-suit based upon the insufficiency of the evidence, is in effect a demurrer to the evidence, and under our code practice, performs the same office as a demurrer to the evidence does under the common law practice,--Gould on Plead. Ch. 9, part 2, p. 446,--and therefore admits the truth of the evidence, and the legal deductions therefrom.

The question for determination therefore is, do the undisputed evidence and the deduction therefrom warrant the recovery had by the plaintiff.

The first ground for the motion for a non-suit is that the evidence does not show that the defendant was negligent.

It is a general rule that the question of negligence is one for the jury; but where, as in this case, the facts are undisputed, the question of negligence is one of law, and the court may withdraw the case from the jury altogether and grant a non-suit, when it is clear from the evidence that there is an absence of negligence.

In this case the defendant, being a corporation, could only act through the agency of natural persons. If, therefore, the deceased was killed through negligence, the acts constituting the negligence must have been done by a natural person or persons. If, however, such person or persons bore such relations to the defendant that their acts, in contemplation of law, were the acts of the defendant, performed in carrying out some general or special duties which the defendant owed to the deceased and which by the contract of the employment the defendant was under obligation to perform, then the defendant is liable, unless the deceased was guilty of such contributory negligence as exempts the defendant from liability.

To determine whether such relations and obligations are disclosed by the facts, a consideration of the duties which the master owes to his employees and who are fellow-servants within the rule which exempts the master from liability to his servant, who is injured by the negligence of a fellow-servant, is necessary.

1. As to the duties which the master owes to his servant.

It is well settled that the contract of employment imposes upon the master the implied obligation not to expose the servant to dangers which the master by the exercise of reasonable care, skill and prudence, could avert. Northern P. R. R. Co. v. Peterson, 162 U.S. 346, 40 L.Ed. 994, 16 S.Ct. 843; Hough v. Railway Co., 100 U.S. 213-217, 10 Otto 213, 25 L.Ed. 612; Wabash Ry. Co. v. McDaniels, 107 U.S. 454-459, 27 L.Ed. 605, 2 S.Ct. 932; Sherman & Redfield's Negligence, sec. 189 and cases cited. 2 Thompson on Neg. p. 972, sec. 3, and the numerous cases cited in note 1; Bailey's Mast. Liability, p. 1 and 2, and note.

Among the implied obligation so imposed upon the master, enumerated by the authorities just quoted, are the following: (1) That he shall provide reasonably suitable means and appliances to enable the servant to do his work as safely as the hazard incident to the employment will permit; (2) that he will provide a suitable and reasonably safe place for doing the work to be performed by the servant.

The master cannot escape liability for injuries inflicted upon his servant for a negligent discharge of these duties, by entrusting their performance to another. These duties are personal duties of the master which can in no way be delegated so as to relieve him from responsibility. A failure to perform these duties, or any negligence in their performance is the negligence of the master for which he is liable. Such negligence is not a hazard necessarily attendant upon the occupation of the servant. Nor is it one which he, in legal contemplation, is presumed to risk in the service of the master. Wright v. Southern Pacific Co. 14 Utah 383 at 392, 393, 46 P. 374; Reddon v. Railway Co., 5 Utah 344, 15 P. 262; Cook v. Mining Co., 12 Utah 51, 41 P. 557; Northern P. R. R. Co. v. Peterson, 162 U.S. 346 at 353, 40 L.Ed. 994, 16 S.Ct. 843; Union P. R. R. Co. v. Daniels, 152 U.S. 684 at 688, 689, 38 L.Ed. 597, 14 S.Ct. 756; Hough v. Railway Co., supra; Wabash Ry. Co. v. McDaniels, supra; Vandusen v. Letellier, 73 Mich. 502, 41 N.W. 481; R. & D. R. R. Co. v. Norment, 84 Va. 167, 4 S.E. 211.

The authorities are harmonious on this question.

It is well settled by the authorities that the master must provide his servant with a reasonably safe place in which to perform his work, and after having furnished such a place to use due diligence and care to keep it in a safe condition. See last cases cited, also Bailey on Liability of Master, p. 34; Sherman and Redfield on Neg. sec. 194, and cases cited; Thompson on Neg. p. 972, sec. 3, and the numerous cases cited in note 1.

In Union Pacific R. R. Co. v. Daniels, supra, Mr. Chief Justice Fuller quotes with approval the following from the opinion of Mr. Justice Brewer in the case of the Baltimore & Ohio R. R. Co. v. Baugh, 149 U.S. 368, 37 L.Ed. 772, 13 S.Ct. 914, to wit: "A master employing a servant impliedly engages with him that the place in which he is to work and the tools and machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and when he employs one to enter into his service he impliedly says to him that there is no danger in the place, the tools and the machinery, but such as is obvious and necessary."

Where the nature of the business is such as to require it, the law also imposes upon him the duty of making and promulgating suitable rules. Abel v. D. & H. Co., 103 N.Y. 581, 9 N.E. 325; Cooper v. The Central R. R. Co. 44 Iowa 134; Railway Co. v. Henderson, 37 Ohio St. 549; C. B. & Q. R. R. v. McLallen, 84 Ill. 109; Bailey's Mast Liab. p. 72; Sherman & Redfield on Neg. sec. 202.

There is no distinction in principle between the duty to be exercised on the part of the master as to the safety of his machinery and the safety of his premises. Bailey's Master's Liability, p. 34-108. Bessex v. Chic. & North-western R. R. Co., 45 Wis. 477 at 482.

Therefore the decisions quoted relating to the former are equally applicable to the latter.

Tested by the well settled rules announced, does the undisputed evidence show negligence upon the part of the defendant?

The deceased was employed as a laborer in the car shops of the defendant. One Shubien was the master mechanic and Joseph Stahr was the foreman of the repair shops of the defendant. It was the duty of Stahr to see that the cars were repaired, to keep the employees of the defendant at work at their proper places, and carry out the orders of the master mechanic. He had a right to direct the movements of the men and give them orders what to do.

Ben Kilpatrick was foreman of the switchmen in the train department, and had been for many years. Under the instructions of Mr. Lee, the yard-master, he directed the switchmen and engineers, who were subject to his orders.

The shop men had nothing to do with the train department.

There were numerous switch tracks. Nos. 1...