Roebuck v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 06 January 1917
• Docket Number: 20583
• Citation: 99 Kan. 544,162 P. 1153
• Parties: ROEBUCK v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

162 P. 1153

99 Kan. 544

ROEBUCK v. ATCHISON, T. & S. F. RY. CO.

No. 20583

Supreme Court of Kansas

January 6, 1917

Rehearing Denied Feb. 16, 1917.

Syllabus

The federal Employers’ Liability Act (Act April 22, 1908 c. 149, 35 Stat. 65 [[[U. S. Comp. St. 1913, §§ 8657–8665]) provides a remedy only in cases where the employee is killed or injured from a cause incidental to or arising out of railroad employment, and therefore the ordinary rules governing the relation of master and servant necessarily apply, and the carrier is liable only where it has been negligent in the performance of some duty imposed upon it as employer.

In determining what constitutes negligence of the carrier in trials under the federal Employers’ Liability Act, the original common–law rules are to be applied, except where those rules are, by the terms of the act, abrogated, qualified, or restricted; and, in case of any conflict between the state and federal courts as to what constitutes negligence, the case is controlled by the common law as interpreted and applied in the federal courts.

Under the common law of master and servant as adopted and enforced by the courts generally, the master is not liable for the willful and criminal assault by one employé upon another, where the assault was not expressly or impliedly authorized or within the scope of the employment. Crelly v Telephone Co., 84 Kan. 19, 113 P. 386, 33 L. R. A. (N. S.) 328.

In an action brought under the federal Employers’ Liability Law (sections 8657–8665, U. S. Comp. St. 1913) to recover damages for the death of plaintiff’s husband, a section foreman in defendant’s employ who was stabbed by a Mexican employed under him, the petition alleged that plaintiff’s intestate notified his superior officers, the roadmaster and the assistant division superintendent, that he could not get along with the Mexican, and had told him to go home; that the next day his superior officers ordered him to put the Mexican back to work; that he then informed the assistant division superintendent that it would be impossible for him to keep the Mexican at work owing to his quarrelsome disposition, that the latter was a dangerous man and had killed one or two men, and that he did not care about the Mexican taking a shot at him; that afterwards the roadmaster advised him that he had no reason to fear a personal attack or encounter and ordered him to keep the Mexican at work, and stated that the company would see that no harm came to plaintiff’s intestate and would protect him; that, relying upon the assurances, he continued in the defendant’s employ as foreman, while the Mexican remained a member of the section gang; and that, while both men were in the employ of the defendant within the scope of their employment, the Mexican stabbed and killed plaintiff’s intestate without warning and without provocation. Held that, on the facts alleged in the petition, no cause of action was stated under the federal Employers’ Liability Law, for the reason that on the undisputed facts the assault was not committed in the course or scope of the Mexican’s employment, nor in the furtherance of the defendant’s business.

Appeal from District Court, Montgomery County.

Action by Tessie Roebuck, administratrix, against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to sustain demurrer.

Johnston, C. J., and West, J., dissenting.

W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant.

Thomas E. Wagstaff, of Independence, for appellee.

OPINION

PORTER, J.

This is an appeal from an order of the district court overruling defendant’s demurrer to plaintiff’s petition. The action was to recover damages in the sum of $22,460 for the death of plaintiff’s husband, Charles Roebuck, a section foreman in its employ, who was killed by Jose Negreta, a Mexican employed in Roebuck’s section gang.

The petition alleges that Charles Roebuck died as a result of being stabbed, on the 24th day of June, 1915, by one Jose Negreta; that both men were at that time in the employ of the defendant within the scope of their employment; that the assault which caused the death of the decedent was without warning, and without provocation or fault on his part. It alleges that the decedent was straw boss or extra gang foreman, and took his orders from J. Carlson, roadmaster, and J. F. McNally, assistant division superintendent of the defendant company; that on the 7th day of March, 1915, he notified Carlson in writing that he could not get along with Negreta, that the latter had cursed him, and that he had told Negreta to go home, that he could not use him any longer. It alleges that the next day Carlson telegraphed him to put Negreta back to work, by order of McNally, assistant division superintendent; that on the 9th day of March the decedent notified McNally that it would be impossible for him to work Negreta, owing to his quarrelsome disposition, that Negreta was a dangerous man, and bore such a reputation, that he had killed one or two men, and he (the decedent) did not care about his taking a shot at him; that thereafter the roadmaster advised him verbally that he had no reason to fear a personal attack or encounter from Negreta, and ordered him to keep Negreta at work, and stated that the company would see that no harm came to decedent and would protect him; that, relying upon the assurances, the decedent, under the orders of Carlson and McNally, continued in defendant’s employ as foreman of the extra gang while Negreta remained a member thereof.

The negligence charged is that the defendant did not furnish Roebuck a safe place in which to work, in that it did not furnish him safe instrumentalities, means, and help with which he was to perform his work, and in retaining Negreta in its employ in the gang which Roebuck was employed to boss, after defendant had been notified of the violent, dangerous, vicious, and malicious habits and reputation of Negreta, all of which the petition alleges the defendant knew or might have known, but failed to make any investigation thereof, after being notified. The petition alleges that the decedent had no authority to finally discharge any member of the extra gang without the consent of Carlson or McNally, and that Negreta well knew this fact, and knew that the decedent was compelled by the direction of Carlson and McNally to keep Negreta at work under him.

The defendant is a common carrier doing both an intrastate and interstate business, and the petition alleges that the track on which the decedent and Jose Negreta were laboring at the time of the assault was then being used by the defendant for such business.

The action is brought under the federal Employers’ Liability Law (sections 8657-8665, U.S. Compiled Statutes), which provides that every common carrier by railroad while engaged in interstate commerce shall be liable in damages for the injury or death of any person while he is employed by such carrier in such commerce, "resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment."

Although the petition alleges that, at the time the act was committed, both Roebuck and Negreta were engaged in work within the scope of their employment, it is not contended that Negreta’s act in stabbing Roebuck was done in the scope of his duty as an employé of the defendant. This, it is conceded, was an independent act of Negreta’s outside the scope of his duties to the railway company. The plaintiff’s contention that the case falls squarely within the provisions of the federal Employers’ Liability Law is based on the claim that defendant failed to furnish Roebuck a safe place to work, "in that it did not furnish him with safe instrumentalities, means, and help" with which to perform his work. In this connection, it is said, too, that Carlson and McNally had authority to discharge both Roebuck and Negreta, and that the former had a right to rely upon the assurances given him by his superior officers that they would protect him and that no harm would come to him by reason of Negreta being kept at work under him.

As we construe the petition, the negligence upon which the plaintiff seeks to rely is not Negreta’s act in stabbing Roebuck, but the negligence of the defendant in continuing Negreta in its employ in Roebuck’s gang after being notified of the violent, vicious, and dangerous disposition of Negreta. The plaintiff’s brief assumes, and it is doubtless true, that defendant’s liability would be no greater because Roebuck notified defendant of Negreta’s vicious and dangerous disposition, provided defendant had actual or constructive notice thereof.

The defendant’s main contention, briefly stated, is that the federal Employers’ Liability Act provides a remedy only in cases where the employé is killed or injured from a cause incidental to or arising out of railway employment, and that therefore the ordinary rules governing the relation of master and servant necessarily apply, and the master is liable only where he has been negligent in the performance of some duty imposed upon him as master.

Counsel for plaintiff objects to what is termed the "sweeping theory" advanced by the defendant that the ordinary rules governing master and servant must apply in this case and insists that under the common-law rule of master and servant the master is liable only where he has been negligent, while in an action brought under the federal Employers’ Liability Law the carrier is liable...