Rio Grande Southern R. Co. v. Nichols

• Decision Date: 05 February 1912
• Citation: 123 P. 318,52 Colo. 300
• Parties: RIO GRANDE SOUTHERN R. CO. v. NICHOLS.
• Court: Colorado Supreme Court

123 P. 318

52 Colo. 300

RIO GRANDE SOUTHERN R. CO. v. NICHOLS.

Supreme Court of Colorado

February 5, 1912

Rehearing denied May 6, 1912.

Appeal from District Court, Ouray County; Sprigg Shackleford, Judge.

Action by Jess W. Nichols against the Rio Grande Southern Railroad Company. From a judgment on a verdict for plaintiff defendant appeals. Affirmed.

E. N. Clark, J. G. McMurry, Carl J. Sigfrid, and Thomas L. Philips, for appellant.

Story &amp Story, for appellee.

GARRIGUES J.

1. August 25, 1906, plaintiff, Nichols, was braking on a freight train of the defendant, the Rio Grande Southern Railroad Company, and while crossing the Dolores river the bridge collapsed, and he, with seven freight cars and the caboose in which he was riding, was precipitated into the gulch below severely injuring him. The complaint alleges defendant negligently failed to maintain a reasonably safe roadbed and track across the river on which to run its trains; that if negligently maintained the bridge upon which the track was laid across the river; that it negligently failed to keep the bridge in a reasonably safe condition, and negligently permitted the timbers, piling, and other materials used in the construction of the bridge to become unsafe, insecure, unsound, and decayed, which negligence caused the accident. The answer admits the bridge collapsed, and plaintiff, with the caboose in which he was riding, was precipitated into the gulch below, but denies that its negligence causes the accident, and alleges the negligence, if any, was that of a fellow servant or servants of the plaintiff in the performance, or attempted performance, of their duties as employes of the defendant, or in the failure to perform the duties incumbent on them as fellow servants of the plaintiff and servants of the defendant. The verdict and judgment were for the plaintiff, and the case is here on appeal.

2. The bridge was a five-bent, double-deck, pile structure, about 300 feet long and 60 feet high. The middle bent was directly over the stream, and some, if not all, the piling on which it rested stood in the water, the surface of which was about 12 feet below the top of the piling. There were three sets of braces lying in parallel planes, running through the bridge lengthwise from end to end, one set at the top, resting on the caps, one at the bottom, supported by the piling, and the other, called "line girts," extending through the middle of the bridge, resting on and spiked to the intermediates. The lower or first deck of the bridge rested on sills supported by the piling, and next came the intermediates, on which rested the top or second deck. One purpose of the braces running through the bridge lengthwise from dump to dump was to hold it together and keep it from buckling. The middle set of braces, resting on the intermediates between the two decks, consisted of six line girts, extending throughout the length of the bridge. The piles on which the middle bent rested were white spruce, and had been in the ground about 15 years without being replaced. The evidence disclosed that the life of this timber, under such conditions, is about 5 years.

About three weeks before the accident, a bridge crew, under the direction of a bridge foreman named Hemingway, began repairing the bridge under written and verbal instructions from the superintendent. On the day of the accident, he had completed the work up to and including the middle bent. It was his intention to take out and replace the intermediates in the adjoining bent after dinner, which necessitated the removal of the line girts between the bents. These girts, it will be remembered, were the middle set of braces that kept the bridge from buckling under the weight and vibration of trains. Just before starting to dinner, he removed these line girts, and in their stead spiked on either side a heavy plant to the outside of the batter posts between these bents. While the workmen were at dinner, and about 10 minutes after 12 o'clock, the freight attempted to cross the bridge, which gave way. The undisputed evidence shows that two of the piles of the middle bent were so rotten that they would mush and crumble in the hand; and a third was very rotten.

Two theories were advanced on the trial as to the cause of the accident, that of the plaintiff being that it resulted from the rotten condition of the piling; while the defendant contended this was not the cause, but that the accident was due to the negligence of Hemingway in removing the line girts without supplying proper and necessary supports in their place.

The timbers of the upper deck fell to the north, while those of the lower deck fell south, indicating, it is said, that the decks had doubled up or "jack-knifed," as the witnesses expressed it.

3. The principal controversy arises over whether the bridge foreman, in repairing the bridge, represented the company, or whether, as to the plaintiff, he was a fellow servant in the operation of the train. In other words, were Hemingway and the plaintiff engaged in operating the road; or did Hemingway represent the defendant in maintaining a reasonably safe place for those engaged in its operation to work? The lower court held that he was not a fellow servant of the plaintiff, but an agent of the company, to whom was delegated the performance of a duty it owed to its employes. It instructed the jury, in substance, that it was the duty of the defendant to keep the bridge in a reasonably safe condition for the passage of trains; that the defendant could not escape responsibility for a discharge of this duty by delegating it to a bridge foreman or other employe; that employes engaged in repairing the bridge, as regards their relations to the plaintiff, were representatives of the company, and if they were guilty of negligence it was the negligence of the company. Defendant objected to this, and asked the court to instruct, if the jury found that the cause of the accident was the negligence of the bridge foreman in repairing the bridge, or the negligence of any member of the bridge gang, or the joint negligence of the foreman and any member of the gang, then the plaintiff's injury was caused by the negligence of a fellow servant, and defendant would not be liable. In support of this position, defendant's witnesses testified that the negligence of the bridge foreman caused the accident; and it is contended here that the fellow servant doctrine applies in this case.

4. The lower court rightly held that the bridge foreman was not a fellow servant of the plaintiff. It was the duty of the defendant to use ordinary care to provide and maintain a reasonably safe place for the plaintiff to work. Operating the train across the bridge was a part of his work. If it delegated this duty to a bridge foreman, he as, for that purpose, the agent or representative of the company; and his negligence was the negligence of the company. Trains generally are operated by employes who are, in that work, fellow servants of those engaged in the work of operation. This kind of work may be, and usually is, assigned or delegated to employes who, while working in that capacity, are not agents or representatives of the company. But the work of constructing, maintaining, furnishing, repairing, superintending, controlling, directing, and managing its business, as distinguished from the work of operations, in nonassignable, and, if delegated to another, makes him, in that respect, the representative of the company; and his failure to use ordinary care, while acting in such representative capacity, is negligence on the part of the company. Wells v. Coe, 9 Colo. 159, 11 P. 50; Denver, T. & G. R. Co. v. Simpson, 16 Colo. 55, 26 P. 339, 25 Am.St.Rep. 242; Colo. Midland Ry. Co. v. O'Brien, 16 Colo. 219, 27 P. 701; Moffatt v. Tenney, 17 Colo. 189, 30 P. 348; Burlington & Colo. R. R. Co. v. Liehe, 17 Colo. 280, 29 P. 175; Colo. Midland Ry. Co. v. Naylon, 17 Colo. 501, 30 P. 249, 31 Am.St.Rep. 335; Grant v. Varney, 21 Colo. 329, 40 P. 771; Deep Mining Co. v. Fitzgerald, 21 Colo. 533, 43 P. 210; D. & R.G.R. Co. v. Sipes, 23 Colo. 226, 47 P. 287; Denver Tram. Co. v. Crumbaugh, 23 Colo. 363, 48 P. 503; Colo. M. & E. Co. v. Mitchell, 26 Colo. 284, 58 P. 28; D. & R.G.R. Co. v. Sipes, 26 Colo. 17, 55 P. 1093; Carleton M. & M. Co. v. Ryan, 29 Colo. 401, 68 P. 279; Tanner V. Harper, 32 Colo. 156, 75 P. 404; Poorman Silver Mines v. Devling, 34 Colo. 37, 81 P. 252; McKean v. Colo. F. & I. Co., 18 Colo.App. 285, 71 P. 425; Roche v. D. & R.G.R. Co., 19 Colo.App. 204, 73 P. 880; Northern P. R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755; Baltimore & Potomac R. v. Mackey, 157 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624; Choctaw, Oklahoma, etc., R. Co., v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; U.P.Ry. Co. v. Daniels, 152 U.S. 684, 14 S.Ct. 765, 38 L.Ed. 597; Louisville & N.R. Co. v. Ward, 61 F. 927, 10 C.C.A. 166; Weeks v. Scharer, 111 F. 330, 49 C.C.A. 372; Swensen v. Bender, 114 F. 1, 51 C.C.A. 627; Sadowski v. Car Co., 84 Mich. 100, 47 N.W. 598.

5. Defendant having taken the position and introduced evidence that the accident was caused by the negligence of its bridge foreman, and the...