Sanderson v. Panther Lumber Co.

• Citation: 40 S.E. 368,50 W.Va. 42
• Parties: SANDERSON v. PANTHER LUMBER CO.
• Decision Date: 09 November 1901
• Court: Supreme Court of West Virginia

40 S.E. 368

50 W.Va. 42

SANDERSON v. PANTHER LUMBER CO.

Supreme Court of Appeals of West Virginia.

November 9, 1901

Syllabus by the Court.

1. A foreman of a lumber camp, whose duty, in the interest of a common employer, requires him to ride on a log train to and from the camp to the mill, is a fellow servant with the employés of the same employer operating such log train, and not a passenger, unless there is an express or implied contract requiring him, directly or indirectly, to pay fare for his passage.

2. An employé assumes, not only the risk of accident occasioned by the negligence of his fellow servants, but also of the known negligence of his employer, if he accepts or continues in such service after knowledge of such negligence.

Error to circuit court, McDowell county; Joseph M. Sanders, Judge.

Bill by James Sanderson against the Panther Lumber Company. Decree for plaintiff, and defendant brings error. Reversed.

Rucker Keller & Anderson, for plaintiff in error.

Henry & Graham, Chapman & Gillespie, and Flournoy, Price & Smith, for defendant in error.

DENT J.

The Panther Lumber Company obtained a writ of error to a judgment against it on the verdict of a jury for the sum of $1,325 rendered by the circuit court of McDowell county at the suit of James Sanderson, on the 10th day of May 1900. The facts are as follows, to wit: The plaintiff was foreman of the lumber camp of the defendant, engaged in the lumber business. As such it was his duty to superintend the cutting of the timber, getting it out of the woods, and loading on the cars at the lumber camp. The defendant operated a railroad eight or nine miles long for the purpose of transporting logs from the camp to the mill. The plaintiff, by permission or direction of the defendant, was in the habit of riding on the log train whenever the business of the company required his presence at the office of the company located at the mills. Plaintiff, needing feed for the horses under his charge, got on a loaded train for the purpose of going to the mills to see about obtaining the feed. A part of the train left the track near a place called the "mud hole." Plaintiff jumped to save himself; but a log struck him, knocking him down, and he suffered the injury for which he sues, consisting of a broken ankle and other wounds and bruises. Some little attempt is made to show that the Panther Railroad Company should have been made defendant, instead of the Panther Lumber Company. The evidence by decided weight and preponderance shows that the Panther Lumber Company is the real Dr. Jekyl, while the Panther Railroad Company is only Mr. Hyde, and the jury made no mistake in so finding. This matter must be considered out of the controversy.

This case depends greatly on the question as to whether the plaintiff is to be treated as a passenger on the train for hire, express or implied, or an employé engaged about his master's business and traveling on the train for the convenience of such business. If in the former capacity, he assumed neither the risks of the master's negligence nor that of the servants operating the train; and, as there is evidence tending to show both, the verdict could not be disturbed, unless contrary to the plain preponderance of the evidence, which in such event does not exist, and the judgment would have to be affirmed. The evidence does not show the plaintiff to have been a passenger, traveling over the road for his own cenvenience, for hire, express or implied. On the contrary, it shows that he was an employé, traveling over the road on his master's business, at the instance of the master, without fare. "The presumption that a person on a train is a passenger does not prevail in cases where the train is one on which passengers are not ordinarily carried, as, for instance, a construction train, or an oil train, or the like. *** As to whether an employé riding on a train is a passenger, there is some conflict; but the rule seems to be that, if he is being carried to and from his working place, he is not a passenger, but, if he is carried for his own convenience or business, he is a passenger." 4 Elliott, R. R. §§ 1578, 1582. "One may be both a passenger and an employé of a railroad company,--an employé when passing over the road at a time when actually engaged in performing duties for the company, but a passenger while not so engaged, but riding from one place to another, even though continuing all the while in a popular sense in the employment of the company. 5 Am. & Eng. Enc. Law, 516. The plaintiff's counsel insist in their argument that plaintiff was required to ride on the cars while engaged in the defendant's business.

According to the foregoing authorities, this makes him a fellow servant with the engineer, and not a passenger. The fact that he was on the cars in discharge of duties he owed to defendant gives rise to fellow servancy, while it might have been otherwise had he been there traveling about his own business with permission of the defendant. Gillshannon v. Railroad Corp., 10 Cush. 229; O'Brien v. Railroad Co., 138 Mass. 387, 52 Am.Rep. 279; Russell v Railroad Co., 17 N.Y. 134; Lumber Co. v. De Nobra, 19 C.C.A. 168, 72 F. 739. In this latter case De Nobra was traveling about his own business, instead of the company's, and was held to be to a certain extent a quasi passenger, though not for fare. McQueen v. Railroad Co., 30 Kan. 689, 1 P. 139; Railroad Co. v. Salmon, 11 Kan. 83; McDaniel v. Railroad Co., 90 Ala. 64, 8 So. 41; Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N.W. 447, 8 Am.St.Rep. 653. From these authorities by his admission the plaintiff must be regarded as an...