Railway Company v. Triplett

• Decision Date: 07 March 1891
• Citation: 15 S.W. 831,54 Ark. 289
• Parties: RAILWAY COMPANY v. TRIPLETT
• Court: Arkansas Supreme Court

15 S.W. 831

54 Ark. 289

RAILWAY COMPANY v. TRIPLETT

Supreme Court of Arkansas

March 7, 1891

APPEAL from Jefferson Circuit Court, JOHN A. WILLIAMS, Judge.

Action by C. H. Triplett, administrator of T. J. Brown, deceased against the St. Louis, Arkansas and Texas Railway Company, to recover damages for personal injuries resulting in death. The facts are stated in the opinion.

J. M. & J. G. Taylor and Sam H. West for appellant.

1. The duty of the railroad ended when it exercised ordinary care to provide the deceased with a reasonably safe place in which to prosecute his work, and it did not guarantee that such place obviously dangerous, should prove reasonably safe. Sh. & Redf. on Neg., 103; 35 Ark. 614; 25 Am. & E. R. Cas., 518 note; 48 Ark. 474; ib., 345. It was necessary to allege and prove that the accident arose because of some failure to discharge a duty which the company owed deceased and that the failure to perform such duty was the proximate cause of the accident. 41 Ark. 382. If the company furnished a safe place and instruments, it is not liable for the negligence of co-employees. 24 Am. & E. Cas., 453.

2. A railroad is not liable for the negligence of a fellow-servant. 4 Metc., 49; Wood, Mast. & S., sec. 427 et seq. As to who are fellow-servants is well stated in 3 Wood Ry. Law, sec. 388, p. 1500. It is laid down that the true test is "subjection to the same general control and co-operation to secure a common result." 6 Rep., 264; 109 U.S. 478; 24 A. & E. R. Cas., 455. Yet the court told the jury in the fourth instruction, that deceased was not a fellow-servant, and consequently the railroad was liable. This was error. 84 N.Y. 77; McKinney on Fellow-Servants, 310; 46 Ark. 388; 92 Ill. 43; 51 Ark. 477. The negligence of fellow-servants is one of the risks arising from his employment which the employe undertakes. Cases supra; 24 A. & E. Cases, 428; 10 Allen, 236; McKinney F. S., sec. 124; Whit. Smith on Neg., p. 139, note; 17 N.W. 422; 48 Ark. 474. The duty of the master is to supply the servant with suitable and safe machinery and appliances, with competent and skilful co-workers, and to make and promulgate sufficient rules and regulations for the conduct of its business, etc. 5 A. & E. R. Cases, 524; 25 id., 507; 58 N.Y. 217; 53 id., 549; 53 Ill. 336; 25 A. & E. R. Cases, 511, and note, p. 513. Who are fellow-servants is a question of fact, not of law, and should be left to the jury. 110 Ill. 216; 12 Am. & E. R. Cas., 228; 17 id., 564; 88 Pa.St. 260; Rorer on Railroads, p. 831; 133 U.S. 374. It devolved on appellee to prove that the injury happened because the railroad did not exercise proper care in the premises 44 Ark. 529. Even if it devolved on the company to use red flags as danger signals, yet Brown went about his work knowing full well that none were used, and that such was not the custom of the company, and thus assumed the risk incident to the enforcement of such rules as the company had adopted. 150 Mass. 478; 30 Wis. 674-8; 50 id., 462; 45 id., 98; 75 Ill. 106; 5 Oh. St., 541; 25 N.Y. 562; 44 Cal. 187. These cases show that if deceased knew the manner of doing business in defendant's yard and remained in its employ after such knowledge, then he could not recover for injury resulting from such management. 5 A. & E. R. Cas., 472; 53 Wis. 74; 5 A. & E. R. Cas., 469; 74 Ind. 440. See also McKinney on F. S., p. 101; 92 Pa. 276; 5 A. & E. R. Cas., 508, and note; Rorer on R. R., p. 703.

M. A. Austin for appellee.

The proximate cause of the death of Brown, appellee's intestate, was the direct result of four separate and distinct acts of negligence on the part of appellant railway company. First--In not keeping danger signals on all the cars on the same track, while Brown was engaged in working under them. Second--In not keeping the switch leading to the track on which these cars were standing securely guarded, or locked, while cars were undergoing repairs. Third--In permitting its servants to change the switches to such tracks, and run in its engines and cars on this track while Brown was engaged in such repairs, without giving him reasonable warning of the danger that might result from such acts of its servants. Fourth--In going in on this track with its engine and cars, and causing the death of Brown.

Brown and the switchman and engineer were not fellow-servants, but the servants of the same master in a different employment. The injury was not one of the ordinary risks of the employment. 24 Am. S. Rev., 190; 1 McM., 385; 112 U.S. 377-383. The doctrine of fellow-servants does not apply in this case. Brown contracted without contemplating the risks resulting from the negligence of those running the engines. He did not regard it as a risk. The company neglected to advise him of the risks by the promulgation of rules governing these repair tracks. Sh. & Redf. on Negl. (2d ed.), 118; Beach on Cont. Neg., sec. 141; Kirkman on Ry. Serv., 258; 91 N.Y. 332; 69 Ill. 464. See also 15 A. & E. R. Cases, 325; Sher. & Redf. on Negl., p. 18; 48 Ark. 345; 100 U.S. 213; 110 Mass. 241; 116 id., 417; 55 Vt. 84; 66 Me. 420; 107 N.Y. 374; 59 Tex. 334; 80 Ind. 281. It was the railroad's duty to provide Brown with a safe place to work. It was its duty to protect him from the carelessness and negligence of its servants. He had the right to rely upon this. Having failed in its duty, it cannot rely upon the doctrine of fellow-servant. McKinney on F. S., pp. 60, 61, 62; 83 N.Y. 7; 24 id., 410; 36 Ohio St. 222; 20 F. 87; 17 Am. L. Reg., 616; 69 I11., 461; 39 Ark. 17; 44 id., 524; 53 N.Y. 549; 5 M. H. & G., 352. Where the master has been negligent in performing a duty, he cannot escape liability by saying that it was the negligent act of his servants. 73 N.Y. 38; 106 U.S. 700; 5 Vroom, N. J., 151.

OPINION

JOHN FLETCHER, Special J.

This is an appeal from a verdict and judgment against the railway company for $ 5000 damages, sustained by the death of appellee's intestate, T. J. Brown, while in the employ of appellant. Brown was a car-repairer employed at the shops of the railway company at Pine Bluff. Near the shops and within the yard limits of the company were situated what are known as repair tracks, en which cars badly crippled and requiring much time to repair are placed. These tracks were under the supervision and control of the foreman of repairs. By the rules of the company, no switchman or engineer was permitted to go upon these tracks for the purpose of switching cars without permission from the foreman of repairs, and he was not supposed to give such permission when men were at work on the track.

The yards of the company are under control of the yard-master. "He has entire supervision of the yard, charge of all trains and cars while in the yard limits, and the placing and disposition of all cars, subject to the order of the superintendent or agent. He does all the necessary switching and anything else that may turn up in that way." He hired and controlled and had the power to discharge the switchmen and engineers at work on the yards. The car repairers were hired by, and were under the immediate supervision of, the master mechanic.

It was the rule of the company for the yard-master at 1 p. m. every day to send a switchman and engineer with an engine to the foreman of repairs, with instructions to do such switching of cars on the repair tracks as might be required, at which time the foreman of repairs would instruct them what cars to take off and what to put upon the repair tracks and where to place them.

At the usual hour on the day of the accident, the yard-master sent a switchman and engineer with an engine, who as usual reported to the foreman of repairs and received from him the number of cars to be switched and instructions where to place the same. At the same time the foreman of repairs pointed out to them the fact that Brown was at work under a car jacked up on one of the tracks, and told them not to go upon that track. The foreman of repairs returned to his office near by, and within twenty or thirty minutes afterwards the switchman threw the switch and caused a train of cars to be backed upon the track where Brown was at work, and, without warning to him, the train struck the car under which he was at work and caused it to fall upon and kill him.

It is claimed by the railway company that the switchman and engineer were fellow-servants with Brown, and no liability can attach to the company by reason of their negligence.

The rule which exempts the master from liability for an injury to a servant occasioned by the negligence of a fellow-servant is now firmly established. The court, and textwriters, however, have found great difficulty in giving an accurate and satisfactory test by which to determine who are fellow-servants within the meaning of the rule.

It is said generally that fellow-servants are those engaged under the control of the same common master and in the same common business, or, to use the terms of several textwriters, "same common pursuit" (3 Wood's Railway Law, sec. 388), "same general business" (2 Thompson on Negligence, p. 1026), "accomplishing the same common object" (Beach on Contributory Negligence, p, 338, sec. 115).

But when we undertake to determine what is essential to render the service common to all, within these terms or expressions, we find the cases numerous and contradictory. It would be beyond the scope of this opinion to undertake to review or to reconcile them.

It would seem that a test approximately applicable to all cases can only be found in the reasons in which the rule itself is based.

Here again we find the courts not entirely harmonious.

One of the reasons assigned for the rule is that of supposed public policy which assumes "that the exemption operates as a...