Southern Pac Co v. Pool

• Decision Date: 06 January 1896
• Docket Number: No. 21,21
• Citation: 16 S.Ct. 338,40 L.Ed. 485,160 U.S. 438
• Parties: SOUTHERN PAC. CO. v. POOL
• Court: U.S. Supreme Court

160 U.S. 438

16 S.Ct. 338

40 L.Ed. 485

SOUTHERN PAC. CO.

v POOL.

No. 21.

January 6, 1896.

Maxwell Evarts, for plaintiff in error.

Samuel Shellabarger, for defendant in error.

Mr. Justice WHITE delivered the opinion of the court.

The action was brought below to recover damages from the defendant (plaintiff in error here), upon the ground that it had negligently, on September 12, 1888, caused an injury, which resulted in the death of Pool, the plaintiff's intestate. The cause was tried by a jury. At the close of the evidence for the plaintiff, defendant moved for a nonsuit, on the grounds (1) that no negligence had been shown on its part; (2) that the evidence established contributory negligence on the part of the deceased. These motions were overruled, and exceptions reserved. The defendant thereupon rested. Exceptions were also taken to the action of the court as to the following: (a) An instruction of the court that if the jury found that Pool, the deceased, was a car repairer, and in a different line of service from that of the negligent servant (if any such there was), and Pool's death was caused thereby, then defendant was liable; (b) to an instruction that the trainmen or yardmen of the defendant company were not fellow servants of the deceased, who was a car repairer; (c) to the action of the court in submitting to the jury for their determination as a fact whether Pool, the deceased, was a fellow servant with the switchman Kilpatrick, by whose negligence it was claimed the injury resulted; and (d) to an instruction that, in ascertaining the quantum of damages, the jury should consider the number of the family left by the deceased, and the ages of his children.

Before the case went to the jury, the defendant renewed its request for a peremptory instruction in its favor, which being refused, exception was taken. The court, in its general charge to the jury, gave as the law of the case what is usually denominated the 'departmental theory' of the law of fellow servant; that is to say, it substantially instructed that the criterion by which they were to determine whether the relation of fellow servant existed was by ascertaining whether the servants were employed in the same department of service, and, if not so employed, they were not fellow servants. Two questions were submitted by the court to the jury to be answered by them. They were: First. 'What of the employees of the defendant, if any, were negligent in the discharge of their duty, and by which the deceased was injured?' Second. 'Did the deceased use such care and precaution to avoid the injury as a prudent man, in the exercise of due diligence, should have used?' The jury returned a verdict in favor of the plaintiff, answering the first question, 'Kilpatrick,' and the second, 'Yes.' After a denial of a motion for new trial, an appeal was taken to the supreme court of the territory, in which court the judgment was affirmed. The grounds upon which this affirmance was based were that there had been no negligence on the part of the deceased, and that the switchman Kilpatrick was not a fellow servant with the car repairer, because they were employed in different departments of service. One of the judges dissented, on the ground that the deceased had been guilty of contributory negligence. 7 Utah, 303, 26 Pac. 654. The case was then brought by error here.

The questions which the record presents are: First. Was the accident which caused the death of Pool the result of his own negligence, hence giving rise to no cause of action on behalf of his representatives? Second. And if the accident was occasioned by the negligence of Kilpatrick, the switchman, can the representatives of the deceased recover damages resulting from such fact? Or, to put the proposition in another form, were Pool and Kilpatrick fellow servants? We will primarily consider the first of the foregoing inquiries, because it is manifest, if the injury was brought about by the negligence of Pool, the question of fellow servant becomes wholly immaterial.

Was the accident caused by the negligence of Pool?

To answer this question involves an analysis of the evidence (which the record fully sets out), not for the purpose of weighing the testimony, or of ascertaining the preponderating balance thereof, but in order to arrive at the undoubted proof from which the legal consequence—negligence—results. There can be no doubt, where evidence is conflicting, that it is the province of the jury to determine, from such evidence, the proof which constitutes negligence. There is also no doubt, where the facts are undisputed or clearly proponderant, that the question of negligence is one of law. Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619. The rule is thus announced in that case (page 283, 152 U. S., and page 619, 14 Sup. Ct.): 'Upon the question of negligence, * * * the court may withdraw a case from the jury altogether, and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Railroad Co. v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569, and authorities there cited; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85; Commissioners v. Beal, 113 U. S. 227, 241, 5 Sup. Ct. 433.'

The undisputed facts which the record here shows are as follows: Pool, the deceased, at the time he received the injury, was in the employ of the company as a car repairer, and had been so employed in its shops at Ogden city, Utah, for three or more years prior to his death. His duty was not only to do repair work on cars which were brought into the shop for that purpose, but also on cars outside of the shops, and standing on the railway track. On the day the accident occurred, about half an hour before the usual hour for quitting their work, Pool and another car repairer, named Fowers, were ordered by the foreman of the car shops to repair the last car of a train of 18 or 20 cars due to leave in a short time for the West. The train was standing on one of the six or seven tracks composing a railway yard, and on these various tracks there was a frequent moving to and fro of trains, and a constant switching of cars backward and forward.

The work to be done consisted in attaching what was called a 'carrying strap' (made of iron, and used to hold up what was known as a 'Miller hook') underneath the platform, about level with the main front of the car, in advance of and outside the wheels. In addition to this work, which Pool and Fowers were sent to do, Rice, who was also a car repairer working in the shop, but doing a higher grade of work, was sent from the shop to 'adjust the air on the train.' These three employees found that in order to do the work of repairing the strap required the moving of the car a short distance from the others in the train, and this was accordingly done by the three,—Pool, Fowers, and Rice. The work 'on the air,' which Rice was to do, could not be executed until the repairs to be made by Pool and Fowers had been completed and the car had been recoupled to the train. The end of the car which required repair faced north, towards the train from which it had just been detached; and Pool and Fowers went under the car, in order to do the work assigned them,—Pool on the west, and Fowers on the east, side of the track. Rice waited in the neighborhood of the car on the east side thereof, so that, when they had finished their work, the car might be recoupled, thus enabling him to do the duty assigned him of 'adjusting the air.' The two men, in going under the car, placed no flag or other signal to warn of their presence there, and thereby protect themselves from the peril to which they were necessarily subjected. There reason for not taking this precaution is stated in the testimony of Fowers:

'Q. Mr. Fowers, couldn't you and Mr. Pool have put up a red flag out there that would have notified,—put up a red flag or some other flag that would have notified the engineer of danger?

'A. Yes, sir.

'Q. Why didn't you put up a flag?

'A. Because it was too big a work.

'Q. Because it was too much work?

'A. Yes, sir.

'Q. You thought it would take only a few minutes before you got through?

'A. Yes, sir. We also knew that we had a man stationed there to watch for us, and considered ourselves safe.

'Q. Who was the man you had stationed there to watch for you?

'A. Mr. Rice,—Mr. George Rice.

'Q. And you considered you were all right with Mr. Rice to watch for you?

'A. Yes, sir.

'Q. Who was Mr. Rice?

'A. He was a car laborer from the shop.

'Q. Was he one of your car repairers?

'A. Yes, sir.'

Shortly after the men went under the car, a switch engine with a caboose and car moved from a track called the 'caboose track,' towards a switch connecting with the track on which the car was being repaired, and backed down for the purpose of coupling the caboose to the south end of this car, such end being the opposite one to that which was being repaired.

The two men under the car could not be seen by the engineer or by those on the backwardly moving caboose. As the engine and caboose came back slowly towards the car, both the men under it heard the noise caused by its movement. However, owing to a curve in the track, Fowers, who was on the east side of the car, could not see the engine and caboose approaching, but, hearing them, spoke to Pool, and said, 'I believe they are coming in here.' Pool, who was on the west side, leaned back, and saw the switch engine and caboose coming down upon them. As he did so, a switchman by the name of Taylor, who was on the west side, was visible to and in hailing distance of Pool. The movement of Pool is thus related by Fowers: 'From his position he could lean back this way, and could see the cars,—see the engine and caboose...