Southern Ry. Co. v. Taylor

• Decision Date: 06 December 1926
• Docket Number: No. 4421.,4421.
• Citation: 16 F.2d 517,57 App. DC 21
• Parties: SOUTHERN RY. CO. v. TAYLOR.
• Court: U.S. Court of Appeals — District of Columbia Circuit

57 App. DC 21, 16 F.2d 517 (1926)

SOUTHERN RY. CO. v. TAYLOR.

No. 4421.

Court of Appeals of District of Columbia.

Submitted October 8, 1926.

Decided December 6, 1926.

F. J. Hogan and E. L. Jones, both of Washington, D. C., for appellant.

W. H. De Lacy and W. C. De Lacy, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

This appeal is from a verdict and judgment awarding damages to appellee, plaintiff below, against the Southern Railway Company, for personal injuries sustained while operating a passenger elevator in the office building of defendant company in the city of Washington.

The evidence discloses that the elevator, while being operated by plaintiff, stuck at or near the eighth floor of the building. Being unable to move it, she summoned the engineer, a Mr. Smith, who went into the penthouse to release it. When the elevator was released, it suddenly dropped to a little below the third floor, where plaintiff was found in an unconscious condition; hence this suit for damages.

The declaration is in two counts. The first count charges defendant company with negligently maintaining a defective elevator, the defects of which, by the use of reasonable care, it could have discovered, but which were unknown to plaintiff. The second count charges that the accident was occasioned by the engineer releasing the elevator in a careless and negligent manner, thereby causing plaintiff's injury.

We think it unnecessary to review the testimony in detail, since the case can be disposed of upon a single question. At the conclusion of the evidence, counsel for defendant moved the court for a directed verdict on both counts of the declaration, stating a number of grounds in support of their motion, among which: "That it would be error for the court to charge the jury that they could find for the plaintiff if they believed that Mr. Smith operated the elevator from the penthouse and negligently caused it to go down suddenly."

During the argument of the motion, the court, among other things, said: "If the person in the penthouse, Mr. Smith, whose duty it was to put the elevator in running order and give the directions about it, sent it down while the elevator operator, the plaintiff, was in the car, and not exercising any control over it, and did that negligently, I think there is a case to go to the jury under the second count. * * * I really do not see any evidence that would justify the submission of the case to the jury upon the allegation that the elevator was out of order or repair, or in itself insufficient or defective; but I do think the plaintiff is entitled to go to the jury on this averment on the second count with respect to the car being controlled from the penthouse by Mr. Smith, and by him negligently dropped or caused to drop down suddenly. I think I should have to overrule the motion for that reason."

The court, without objection or exception by counsel for plaintiff, directed a verdict for the defendant on the first count of the declaration, and submitted the case to the jury on the sole question of the liability of the defendant for the careless and negligent manner in which the engineer, Smith, released and operated the car from the penthouse. The material part of the court's instruction was as follows:

"Plaintiff avers that on the occasion in question, when her car was near the eighth floor, it stuck and she could not move it, whereupon she got word to the employee of defendant, Mr. Smith, whose duty it was to attend to such matters, and that he went into the penthouse and told her to go down, but that, before she was able to do anything herself toward moving her car down, the car itself went down, and that this accident happened as the result of its suddenly going down. She says that it was done negligently by the man in the penthouse; that he negligently caused the car to drop and descend. The company was represented in that respect by Mr. Smith, and it was the duty of the company, through Mr. Smith, to exercise reasonable care and prudence with respect to the matter; that is, the matter of releasing the car and putting it in condition to go down."

The position thus assumed by the learned trial justice resolves the case to the single question whether Smith occupied the relation of fellow servant to plaintiff. If he did, the judgment is wrong, and must be reversed.

It is clear from the foregoing instruction that the court below ignored entirely the question of fellow servant, and regarded Smith as such an agent of the corporation as to remove him from the status of fellow service with the plaintiff. The fellow-servant doctrine, as applied at common law, is not easily defined, nor are the decisions in this country in accord as to its application. In many of the states, by statute and judicial decision, the common-law rule has been very greatly modified, but in the federal courts it has been strictly adhered to.

From the authorities, fellow servants may be defined as employees engaged in the same common pursuit, under the same general control, serving the same master, working under the same management, engaged in the same general business, and deriving authority and compensation from the same common source. Employees working under these circumstances are fellow servants, and as such assume the risk of each other's negligence.

While it is a general rule that employees entering the service of a common master become engaged in a common service and are fellow servants, there are duties imposed upon the master which he cannot ignore and still claim immunity under the fellow-servant doctrine; for example, he must provide his employees with a reasonably safe place in which to work and reasonably safe tools, appliances, and machinery for the accomplishment of the work. He must employ reasonably competent employees to perform the respective duties to which they are assigned, and in some of the states it has been held that the master is obliged to adopt and promulgate safe and proper rules for the conduct of the business.

It is generally held, however, that the master is liable for the negligence of his agent in charge of a separate department of the business through whose negligence an employee in the department is injured. In those cases it has been held that such an agent is a vice principal, and that his negligence is the negligence of the master; hence a servant who occupies a subordinate position in the department, and is injured through the negligence of the agent, may recover from the master for the injuries thus sustained. But employees in separate departments of a business should not be confused with employees who may be engaged merely in different occupations.

In Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 383, 13 S. Ct. 914, 920 (37 L. Ed. 772) Mr. Justice Brewer, illustrating the meaning of the expression "different branches or departments of service," stated that "between the law department of a railway corporation and the operating department there is a natural and distinct separation, one which makes the two departments like two independent kinds of business, in which the one employer and master is engaged. So oftentimes there is in the affairs of such corporation what may be called a manufacturing or repair department, and another strictly operating department; these two departments are, in their relation to each other, as distinct and separate as though the work of each was carried on by a separate corporation. And from this natural separation flows the rule that he who is placed in charge of such separate branch of the service, who alone superintends and has the control of it, is as to it in the place of the master."

The fellow-servant doctrine was originally annunciated on the theory of the existence of an implied contract of employment, calculated to make servants in a common employment watchful of each other, and thereby promote carefulness in the performance of their duties. While it thus provides for the safety and welfare, it in effect works no injury to the servant, since he is free to enter or refuse to enter into the service, and is charged with knowledge of its hazards, and possessed of the power and right to demand such wages as he may deem compensatory.

In a few states there is recognized what is called the "consociation doctrine," limiting the fellow-servant rule to those directly cooperating at the time of the injury in the particular business in which they are at the time engaged, and whose duties bring them into such juxtaposition that one would be enabled to observe the negligence of his fellows, or the usual duties are of such a nature as to bring them into habitual association, so that an opportunity may be afforded of exercising an influence upon each other promotive of proper caution. This rule has been repudiated by the federal courts and by the courts of most of the states.

What is known as the "superior servant doctrine" had been adopted by judicial decision in some of the states before the enactment of statutes on the subject. It is, however, now largely controlled by statutory enactment, and relates more particularly to employees engaged in hazardous occupations. These statutes render the master liable for "the negligence of any person engaged as superintendent, manager, foreman, or any other person in charge or control of works, plants, or machinery, or by the negligence of any person in charge of or directing the particular work in which the employee was engaged at the time of the injury or death." 29 Corpus Juris, 645. This doctrine, however, is not recognized in the federal courts, and there is no statute on the subject.

In Chicago, Milwaukee & St. Paul R. Co. v. Ross, 112 U. S. 377, 5 S. Ct. 184, 28 L. Ed. 787, the company was held liable in damages to a train employee for injuries received as the result of the negligence of the conductor...