Sartin v. Oregon Short Line R. Co.

• Citation: 27 Utah 447,76 P. 219
• Decision Date: 11 April 1904
• Docket Number: 1528
• Court: Supreme Court of Utah
• Parties: OLIVER S. SARTIN, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

76 P. 219

27 Utah 447

OLIVER S. SARTIN, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1528

Supreme Court of Utah

April 11, 1904

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

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

P. L Williams, Esq., and George H. Smith, Esq., for appellant.

Alfred W. Agee, Esq., for respondent.

BARTCH J., delivered the opinion of the court. BASKIN, C. J McCARTY, J., concurring.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

In this action the plaintiff seeks to recover damages for personal injuries which he received while in the employ of the defendant railroad company. It appears he entered the employ of the company on June 29, 1902, in the State of Idaho, as a laborer and member of a "fence gang," whose duty it was to repair and build fences along the company's line of railway in that State. He remained in the employ of the company as such laborer continuously until the date of his injury, September 2, 1902. At that time the outfit cars in which the men, including the foreman, lived, were stationed at Belleview, Idaho, but the gang were then working about 10 miles below that place. The men, 10 in number, including the foreman, who worked and rode with them, went to and from their place of work in two hand cars--5 on each car--propelled by themselves. The cars were frequently run close together--so close that the parties could talk back and forth from one car to the other. The men, including the plaintiff, frequently raced with the cars, and on the morning and at the time when the accident occurred, the cars, with 5 men and some fencing material and tools on each car, were running very fast--at the rate of 10 to 15 miles per hour--the plaintiff being on the front car, and the foreman on the one in the rear. The foreman supervised the work of the fence gang, worked with the gang, and could employ and discharge men. He testified he "frequently directed the crew about running hand cars, and always forbade them running close together," and that he "endeavored to enforce the rule of not running hand cars too close together." The rule of the company on this subject was: "When two or more hand cars or push cars are running in the same direction, keep them at least two telegraph poles apart." But the foreman had not seen a printed rule. On the morning of the injury the rear car had been steadily gaining on the forward one, and several times was close to it. This was observed by the plaintiff and others just before the accident. Some of the evidence was to the effect that when the accident occurred the rear car ran against the forward one, so that the jar caused the plaintiff to lose his balance and fall off in front of the rear car, which ran over him, inflicting the injury of which he complains. There is other evidence tending to show that, when the plaintiff lost his balance and fell, the rear car was not within 20 or more feet of the front car, and that the jarring of the car from rough track caused him to fall off. Just before he lost his balance and fell, he had let go of the handle bars, and was standing up on the car without holding onto anything, although he saw the rear car, as he says, close to his car just before he fell. At the same time one of his companions who also fell off with him, was standing up in the same manner, with his watch in his hand, looking at the telegraph poles, as if timing the speed of the car, and according to the testimony of one of the witnesses, said, "Let's see how fast we can make the next mile in." The evidence also shows that when the men held onto the handle bars, or to something stationary, there was no danger of falling off, and that, if they did not hold onto anything, they were liable to lose their balance, when the car was running fast, and fall off, even on a smooth track. The jury returned a verdict in favor of the plaintiff for the sum of $ 5,250. Thereafter a motion for a new trial was overruled, and judgment entered accordingly. The defendant appealed.

BARTCH, J., after stating the facts as above, delivered the opinion of the court.

At the close of the evidence in this case the defendant, among other things, requested the court to charge the jury that, "as matter of law, the plaintiff is not entitled to recover in this action," and to direct them to return a verdict of "no cause of action." This the court refused to do and the appellant now contends that the refusal was error; that, if there was any negligence, it was that of a fellow-servant, for which the company was not liable. Upon careful examination of the question thus presented, under the law applicable to this case, and in the light of the facts disclosed by the evidence, we are of the opinion that this contention is well founded. The plaintiff was employed, and the accident which caused the injury occurred, in the State of Idaho. If the plaintiff was not himself negligent at the time of the injury--a question, under our view of the case, not necessary to decide--then, if the injury was the result of any negligence, it was the negligence of the foreman and other members of the fence gang. That the company is not liable for the negligence of fellow-servants is not open to question under the law of Idaho; there being no charge that due and proper care was not exercised in the employment of the foreman or of any of the plaintiff's colaborers, or in the providing of properly equipped hand cars for the occasion. The foreman testified he knew that the practice, and rule growing out of it, was to run such hand cars about the distance of two telegraph poles apart. On the occasion in question it is clear from the evidence that the hand cars were being run close together, in violation of such rule and practice; and the foreman was on the rear car, but, so far as appears, made no objection, nor did the plaintiff or any other member of the party object, to the nearness of that car to the front one. Oblivious to the danger of thus running the cars, they went on until the accident occurred; the foreman being in charge of the entire party. If then we assume, from the conflicting evidence, that the plaintiff fell from his car and was injured because of a jar occasioned by the running of the rear car against the front one, the question is whether, under the laws of Idaho, which have been properly referred to and proved herein, the company is liable for injury thus caused by the negligence of its foreman, or whether the foreman was a fellow-servant, for whose negligence the employer was not liable. The right of recovery in such a case is governed by the lex loci, and not by the lex fori. Northern P. R. R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958. At the time of the accident the general or common law rule on the subject of fellow-servants prevailed in that State. Mr. Beach, in his work on Contributory Negligence, section 324, states the law of fellow-servants as follows: "In the present state of the law the essence of common employment is a common employer, and payment from a common fund. The weight of authority is to the effect that all who work for a common master or who are subject to a common control, or derive their compensation from a common source, and are engaged in the same general employment, working to accomplish the same general end, though it may be in different departments or grades of it, are coemployees, who are held, in law, to assume the risk of one another's negligence." In Snyder v. Viola Min. & Smelt. Co., 3 Idaho (Hasb.) 28, 26 P. 127, where the question was whether a blacksmith engaged in the same mine, sharpening tools for use of miners, and whose duty it was to deliver such tools, after being sharpened, to miners at work in the mine, was a fellow-servant with the miners, the Supreme Court of Idaho, holding that he was such fellow-servant, and referring to the above rule of Mr. Beach, after quoting it, said: "If this be the correct rule, and we so accept it, can there be any doubt that plaintiff and Goodall were fellow-servants? The plaintiff having failed to show negligence on the part of defendant, it seems to us that the defendant's ...