Southern Pac. Co. v. McGill

• Decision Date: 10 February 1896
• Docket Number: Civil 342
• Citation: 5 Ariz. 36,44 P. 302
• Parties: SOUTHERN PACIFIC COMPANY, Defendant and Appellant, v. WILLIAM McGILL, Plaintiff and Appellee
• Court: Arizona Supreme Court

44 P. 302

5 Ariz. 36

SOUTHERN PACIFIC COMPANY, Defendant and Appellant, v. WILLIAM McGILL, Plaintiff and Appellee

Civil No. 342

Supreme Court of Arizona

February 10, 1896

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. R. E. Sloan, Judge.

Reversed.

Frank Cox, J. A. Zabriskie, Maxwell & Satterwhite, and W. H Barnes, for Appellant.

The plaintiff's case was tried upon the lines, and is founded entirely upon the doctrine, laid down in the Ross case; and if the Ross case is overruled or limited to such extent as to change the doctrine, we submit this case must be overruled.

Does the case of Baltimore etc. R. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772, overrule the Ross case or limit it to such an extent as to change the doctrine? Judge Field says of the Baugh case in his dissenting opinion page 410: "The opinion of the majority not only limits and narrows the doctrine of the Ross case, but in effect denies, even with the limitations placed by them upon it, the correctness of its general doctrine, and asserts that the risks which an employee of a company assumes from the service which he undertakes, is from the negligence from one in immediate control as well as from a co-worker, and that there is no superintending agency for which a corporation is liable unless it extend to an entire department of service."

In Louisville etc. R. R. Co. v. Petty, 67 Miss. 255, 19 Am. St. Rep. 304, 7 So. 351, the court says: "No rule of the common law is more universally affirmed than the non-liability of the master to one of its servants for an injury caused by the negligence of a fellow-servant, and it was distinctly announced in this court more than sixteen years ago that all employees of a railroad company engaged in merely operative service are fellow-servants."

In Knabath v. Oregon Short Line R. R. Co., 21 Or. 136, 27 P. 91, decided in 1891, the court held: "A section hand riding on a work train from one place to another under the orders of a roadmaster is a fellow-servant of the conductor and engineer."

In Galveston etc. R. R. Co. v. Smith, 76 Tex. 611, 18 Am. St. Rep. 78, 13 S.W. 562, it was held that "A roadmaster in charge of a work-train, who had the power to employ and discharge the men on his train, and who moved the train so negligently as to have a collision with another train, in which a section hand who was riding upon the work-train was injured, was a fellow-servant of the section hand, and his negligence could not be considered the negligence of the company." The court said: "It has been held in this state that the negligence of the conductor of the train having control of its operation is not chargeable to the company because he is a fellow-servant of the subordinate operatives. Superiority of work and authority in the service is no test." Citing Robinson v. Railroad Co., 46 Tex. 550.

The cases of Baltimore etc. R. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914; Randall v. Baltimore etc. R. R. Co., 109 U.S. 478, 3 S.Ct. 322; Quebec Steamship Co. v. Merchant, 133 U.S. 375, 10 S.Ct. 397, are decisive of the proposition of McGill and Barrett being fellow-servants within the meaning of the law.

Francis J. Heney, G. C. Israel, and Rochester Ford, for Appellee.

Baker, C. J. Hawkins, J., concurs. Bethune, J., (specially concurring). Rouse, J., concurs in the above.

OPINION

Baker, C. J.

Statement of facts:--

The appellee (hereinafter called the "plaintiff") was injured in a collision between a work-train and a regular passenger-train on the railroad of appellant (hereinafter called the "defendant") on August 24, 1890. At the time of the injury the plaintiff was in the employment of the defendant in the capacity of section foreman. His duties were to repair the roadbed, clean up wrecks, and do other similar work under the supervision and control of a roadmaster, from whom he received all orders. Some twelve or thirteen miles of the company's track was allotted to his care in respect to such work. He was directed by the roadmaster to go to a point on the track about six or seven miles west of a section called "Pantano," and within that part of the track allotted to his care in the respect mentioned, and there to grade and lay a track in order to raise an engine which had been derailed and wrecked by reason of a washout. He boarded a work-train used for the purpose, with his gang of men and tools, and went to this point, and was there engaged in the work of raising said engine until about three o'clock in the afternoon of that day, August 24, 1890. The regular passenger train going east, called "No. 19," was due at this point at about that time, and in order to clear the track for its safe passage the work-train which carried the plaintiff and his men to the point commenced to back up east, towards Pantano, for the purpose of switching. The civil engineer (Lloyd), who, in the absence of the roadmaster (Doyle), was in charge of plaintiff and the men under him, directed plaintiff and his men to get on the work-train. The plaintiff was in the act of doing so. when the conductor of this train came along, and said to the plaintiff: "D--n it, McGill; why don't you get your men on the train. 19 will be on top of us before we start." Thereupon plaintiff boarded the train, which then commenced to back up at the rate of ten or twelve miles per hour. It had not gone over three quarters of a mile when it collided with the regular passenger-train, called "No. 20," which was proceeding west behind its schedule time. The plaintiff was seriously injured about the head in the collision, and brought this action to recover his damages. The only charge of negligence made in the complaint is the one against Barrett, the conductor of the work-train. It is charged that he ran the train negligently, and with want of care and attention to his duty, and so caused the accident. The jury gave the plaintiff a verdict in the sum of twenty-five thousand dollars. The case was brought to this court on appeal, and the judgment was affirmed upon the plaintiff reducing it to fifteen thousand dollars. McGill v. Southern Pacific Co., 4 Ariz. 116, 33 P. 821. The court, however, granted a rehearing in the case, and this decision is made upon such rehearing.

BAKER, C. J. (after stating the facts).--

We decline to pass upon the question of the negligence of Barrett, the conductor. The evidence is conflicting in that particular. Besides, that question is not decisive of the case.

The following instruction was given to the jury for plaintiff: "The court instructs the jury that the conductor of a railway train, who commands its movements, directs when it shall start, at what station it shall stop, and has the general management of it, and control over the persons employed on it, represents the railway company; and is not a fellow-servant with a section foreman in the employ of said company. If the jury believe from the evidence that John Barrett was the conductor of the train upon which plaintiff was, and had the powers just stated regarding such train, the court instructs the jury that Barrett was not a fellow-servant with the plaintiff." This instruction was not altered, changed, or modified by any instruction subsequently given, and, being objected to, and duly assigned as error, constitutes the pivotal point in the case. There is an endless diversity of opinion upon this "fellow-servant" doctrine in the decisions of the various courts in this country. In the states of Massachusetts, Maryland, Maine, Minnesota, Indiana, Iowa, North Carolina, California, Texas, Arkansas, Pennsylvania, Rhode Island, New York, and Wisconsin it is generally held, as between laborers upon a railroad track and the conductor of a train, the relationship of fellow-servants exists. In Missouri, Ohio, Kentucky, and Illinois this doctrine is denied. The cases are too numerous to cite, and it would be an idle effort to attempt to reconcile or distinguish them. I can do no better than to deduce one or two propositions applicable to the facts at bar, which the decided weight of all cases authorizes:--

(1) A person entering the service of a corporation assumes all the risk naturally incident to his employment, including the danger which may arise from the negligence of a fellow-servant;

(2) That the master's liability does not depend upon gradations in the employment, unless the superiority of the person causing the injury was such as to make him principal or vice-principal;

(3) The liability of the master does not depend upon the fact that the servant injured may be doing work not identical with that of the wrong-doer. The test is, the servant must be employed in different departments which in themselves are so distinct and separate as to preclude the probability of contact and of danger of injury by the negligent performance of the duties of the servant in the other department.

In this jurisdiction we are governed by the decisions of the United States supreme court, and this case is to be determined upon the principles set out in the following cases decided in that tribunal: Randall v Railroad Co., 109 U.S. 478, 3 S.Ct. 322; Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914; Railroad Co. v. Hambly, 154 U.S. 349, 14 S.Ct. 983. In Randall v. Railroad Co., a brakeman was injured by a passing locomotive while working a switch. The court said: "Nor is it necessary, for the purpose of this case, to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several states, because persons standing in such a relation to one another as did this...