Southern Pac. Co. v. Lafferty

• Decision Date: 17 July 1893
• Docket Number: 91.
• Citation: 57 F. 536
• Parties: SOUTHERN PAC. CO. v. LAFFERTY.
• Court: U.S. Court of Appeals — Ninth Circuit

57 F. 536

SOUTHERN PAC. CO. v. LAFFERTY.

No. 91.

United States Court of Appeals, Ninth Circuit

July 17, 1893

Foshay Walker, (A. B. Hotchkiss, on the brief,) for plaintiff in error.

M. E C. Munday, (C. L. Russell, on the brief,) for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

On the night of December 26, 1890, James Lafferty, while in the employ of the Southern Pacific Company, plaintiff in error as a brakeman on a freight train, received injuries in a collision of said freight train with two engines belonging to said company, which resulted in his death. It appears from the evidence that the two engines were, on the evening in question, taken into the yard of the railroad company at Fresno, and there left by their respective engineers, at the conclusion of their day's run, standing upon one of the railroad tracks, with water in their boilers and fires burning, known in railroad parlance as 'live engines.' There is no evidence in the record to show in what particular manner the engines were moved from the place where they were left by the engineers but it is a fact that in some way, in a manner not shown by the evidence, the engines did leave the yard, and got out upon the main railroad track, and ran a distance of about 2 1/2 miles from Fresno, when the collision occurred. This action was brought by the defendant in error, as administratrix of the estate of James Lafferty, deceased, to recover damages for his death, which it is alleged was caused by the negligence of the railroad company. It is not claimed by the administratrix that there was any negligence on the part of any of the employes of the railroad company, or that any of the railroad tracks or switches, or that the engines, or either of them, were in any manner defective.

The only question that was submitted to the jury, in so far as the question of negligence upon the part of the railroad company was concerned, was as to whether or not it was negligent in not taking the necessary, proper, and reasonable precaution to guard the engines left upon its tracks in Fresno. As bearing upon this question it was shown that three engines were usually left in the yards at night, sometimes four; that on the night in question there were three,--two road engines and one switch engine; that one of the road engines was left on the tank track; that the others--which were afterwards moved out upon the track--were left on the turntable track, about 30 feet apart, and about 75 yards distant from the engine on the tank track; that one Riley was employed by the company to watch all the engines at night. Riley testified that on the night in question he 'was to take care of the two engines, to keep fire and water in and wipe another engine, get the three ready for morning, * * * or whatever time they were called for;' that he had partially cleaned the engine on the tank track, and then examined the two engines on the turntable track, saw that they had sufficient fire and water in them to last for at least three hours, and then left them, and went back to the other engine, and continued wiping it for about half an hour or more, and then heard of the accident, which was the first knowledge he had that the two engines had been moved away. It was also shown that the night was dark, and so foggy that a person could not see objects at a distance of over 30 feet or thereabouts. There was evidence tending to show that the engineers were instructed to group the engines together, and that they failed to do so on the night in question. There was some question raised as to the time when these instructions were given. Riley testified that he had not been informed of such instructions until after the accident.

It is contended by counsel for the railroad company that the engines must have been put in motion by some evil-disposed persons; that, if there was any negligence, it was not the negligence of the railroad company, but the carelessness or negligence of the coemployes either of the watchman or the engineers who failed to obey their instructions in grouping their engines together, who were fellow servants with the deceased; and that for this reason the court erred in refusing to instruct the jury, as requested by them at the close of the testimony, to find a verdict in favor of the defendant, (plaintiff in error.)

The court instructed the jury that the railroad company was not an insurer of the lives or limbs of its employes, but was bound to exercise ordinary care and reasonable precaution for their protection; that Lafferty, (the deceased,) when he accepted the employment of the company as a brakeman, undertook all the risks that naturally appertained to the business; that the engineers who left their engines in the yard at Fresno, and Riley, the watchman, were fellow employes of the brakeman, and for their negligence, if any was committed by them, the railroad company would not be liable. After referring to the conflict in the testimony as to the time when the orders were given to the engineers to group their engines together,--whether before or after the accident,--and also as to the purport of such orders, and leaving these questions of fact to be determined by the jury, the court further instructed the jury as follows:

If you should find that those engineers were instructed to group their engines together in the yard after completing their day's run, then you are to consider the case as if all three of the engines on the night in question were grouped together; and then you are to say whether or not, in that aspect of the case, the appointment by the railroad company of a competent watchman (because there is no claim that Riley was not competent, nor is there any claim that he did not perform his duty in all respects) to look after those engines, and see that they were not tampered with, or moved from their place, was a reasonable precaution to be taken by the company. They were obliged to exercise ordinary care to see that no damage came, no injury resulted, to its employes. Now, was that reasonable, in view of all those facts and circumstances? They were not bound to insure against any accident, but to exercise a reasonable caution; and, under those circumstances, it is for you to say whether or not the appointment of a competent watchman and rubber of or wiper of the engines was such a reasonable precaution.'

We are of opinion that the court did not err in declaring that the law imposed upon the railroad company the duty of taking reasonable precautions to see that the engines left upon its tracks at night in the yard at Fresno, with water in the boilers and fires burning, were not tampered with or moved; and that the court properly submitted to the jury the question whether or not the employment of only one watchman to perform that duty, it being also required of him to wipe the engines and put them in proper order for service the next day, was a reasonable precaution.

The general rule is that a person who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of his employment, but this rule is subject to many well-known and clearly established qualifications, and, among others, it is well settled that the master should not expose his employes when conducting and carrying on his business, to perils or hazards against which they might be guarded by ordinary diligence and reasonable precautions on his part. The master is bound to exercise the care which the exigencies of the business in which he is engaged reasonably requires for the protection of his employes. Hough v. Railway Co., 100 U.S. 213. Applying these principles to the particular facts of this case, we are of opinion that the railroad company would have been negligent to have allowed its engines to remain upon its tracks in the yard at Fresno without taking some precautions to provide against their being put in motion of themselves, or by the act of careless, thoughtless, or evil-disposed...