St. Louis, A. & T. Ry. Co. v. Triplett

• Decision Date: 07 March 1891
• Citation: 15 S.W. 831
• Parties: ST. LOUIS, A. & T. RY. CO. v. TRIPLETT.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

15 S.W. 831

ST. LOUIS, A. & T. RY. CO. v. TRIPLETT.¹

Supreme Court of Arkansas.

March 7, 1891.

Appeal from circuit court, Jefferson county; JOHN A. WILLIAMS, Judge.

J. M. & J. G. Taylor and Sam H. West, for appellant. M. A. Austin, for appellee.

FLETCHER, Special Judge.

This is an appeal from a verdict and judgment against the railway company for $5,000 damages, sustained by the death of appellee's intestate, T. J. Brown, while in the employ of appellant. Brown was a car-repairer, employed at the shops of the railway company at Pine Bluff. Near the shops, and within the yard limits of the company, were situated what are known as "repair tracks," on which cars badly crippled, and requiring much time to repair, are placed. These tracks are under the supervision and control of the foreman of repairs. By the rules of the company, no switchman or engineer was permitted to go upon these tracks for the purpose of switching cars without permission from the foreman of repairs, and he was not supposed to give such permission when men were at work on the track. The yards of the company are under the control of the yard-master. "He has entire supervision of the yard, charge of all trains and cars while in the yard limits, and the placing and disposition of all cars, subject to the order of the superintendent or agent. He does all the necessary switching, and anything else that may turn up in that way." He hired and controlled and had the power to discharge the switchmen and engineers at work on the yards. The car-repairers were hired by and under the immediate supervision of the master mechanic. It was the rule of the company for the yard-master at 1 P. M. every day to send a switchman and engineer with an engine to the foreman of repairs, with instructions to do such switching of cars on the repair tracks as might be required, at which time the foreman of repairs would instruct them what cars to take off and what to put upon the repair tracks, and where to place them. At the usual hour on the day of the accident the yard-master sent a switchman and engineer with an engine, who, as usual, reported to the foreman of repairs, and received from him the numbers of cars to be switched, and instructions where to place the same. At the same time the foreman of repairs pointed out to them the fact that Brown was at work under a car jacked up on one of the tracks, and told them not to go upon that track. The foreman of repairs returned to his office near by, and within 20 or 30 minutes afterwards the switchman threw the switch, and caused a train of cars to be backed upon the track where Brown was at work, and without warning to him. The train struck the car under which he was at work, and caused it to fall upon and kill him.

It is claimed by the railway company that the switchman and engineer were fellow-servants with Brown, and no liability can attach to the company by reason of their negligence. The rule which exempts the master from liability for an injury to a servant occasioned by the negligence of a fellow-servant is now firmly established. The courts and text-writers, however, have found great difficulty in giving an accurate and satisfactory test by which to determine who are fellow-servants within the meaning of the rule. It is said, generally, that fellow-servants are those engaged under the control of the same common master and in the same common business, or, to use the terms of several text-writers, "same common pursuit," (3 Wood, Ry. Law, § 388;) "same general business," (2 Thomp. Neg. p. 1026;) "accomplishing the same common employment," (Beach, Contrib. Neg. p. 338, § 115.) But when we undertake to determine what is essential to render the service common to all within these terms or expressions we find the cases numerous and contradictory. It would be beyond the scope of this opinion to undertake to review or to reconcile them. It would seem that a test approximately applicable to all cases can only be found in the reasons in which the rule itself is based. Here, again, we find the courts not entirely harmonious. One of the reasons assigned for the rule is that of supposed public policy, which assumes "that the exemption operates as a stimulant to diligence and caution on the part of the servant for his own safety as well as that of the master." "Much potency," says Mr. Justice FIELD in the case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, "is ascribed to this assumed fact by reference to those cases where diligence and caution on the part of servants contribute the chief protection against accident. But it may be doubted whether the exemption has the effect thus claimed for it. We have never known parties more willing to subject themselves to dangers of life or limb because, if losing the one or suffering in the other, damages could be recovered by their representatives or themselves for the loss or injury. The dread of personal injury has always proved sufficient to bring into exercise the vigilance and activity of the servant." Some of the courts, however, assuming this reason to be the basis of the rule, have drawn from it the conclusion that those only are fellow-servants who are so consociated in the discharge of their duties that they can exercise an influence upon each other promotive of caution, because, as they say, the reason of the rule ceasing, its application should also cease. Out of this has arisen the doctrine of separate departments, by which a distinction is made between those servants engaged in the same department and those engaged in different departments of the same general business. Railroad Co. v. Moranda, 93 Ill. 302; Cooper v. Mullins, 30 Ga. 150; Railroad Co. v. Collins, 2 Duv. 114; Railroad Co. v. Jones, 9 Heisk. 27; McKinney, Fel. Serv. § 72, and cases cited. The reasoning of these courts is not without weight, and, in given cases, is strongly persuasive, as reflecting light upon the nature of the risks assumed by the servant and the obligations of the master to protect him against such risk. But when it is sought to make the question whether or not the servants are engaged in the same or different departments an arbitrary test by which to determine the liability of the master, the results reached must often be unsatisfactory. It leads to confusion and possible absurdities. It is not difficult to conceive of instances where servants engaged in the same department of business may have no opportunity to observe the habits or to exercise an influence upon each other, or where servants in different departments may have opportunity to observe and influence the conduct of each other, or where the dangers naturally arising from the negligence of each may be as great in different as in the same departments of business. As said by the supreme court of Rhode Island in Brodeur v. Valley Falls Co., 17 Atl. Rep. 55: "There is an obvious impracticability in trying to gauge the liability of an employe in a complex business by the independence of its different branches, or by the inter-communications of those employed. Not only would it be almost impossible, in many cases, to separate the work into distinct departments, and to discern their dividing lines, but incidental duties, changing the relations of workmen to each other, would vary also the master's liability. He would thus be liable for the negligence of a servant at one time or place and not at another. Without a personal supervision of all his help in all their work he would not know when he was responsible and when he was not. Moreover, such a rule would govern the liability of a master when the ground-work upon which the rule is founded did not exist; for, if the test of liability be that of the separate and independent duties of the servants, they may nevertheless be so near each other as to be able to exert a mutual influence to caution; or, if it be that of association, they may still be in the same department, but unable, from their duties or position, to exert such influence." The true reason on which the rule is based, as shown by the great weight of authority, is that a person who voluntarily engages in the service of another presumably assumes all the risks ordinarily incident to that service, and fixes his compensation with a view to such risks. Randall v. Railroad Co., 109 U. S. 485, 3 Sup. Ct. Rep. 322; Wood, Mast. & S. § 326; Underh. Torts, p. 52; Farwell v. Railway Co., 4 Metc. (Mass.) 49. See note 5 to section 72, McKinney, Fel. Serv., where the authorities are cited; Campbell v. Railroad Co., (Pa.) 2 Atl. Rep. 489; Railroad Co. v. Fort, 17 Wall. 553.

If this be the principle underlying the rule, it would seem that the question which forms a test in any case is one of risks; and that, where one servant is shown to have been injured by another, the question is not whether the two servants were fellow-servants in any technical sense of the term, but whether the injury was within the risk ordinarily incident to the service undertaken. "The negligence of a fellow-workman engaged upon a common work is commonly accounted among the risks undertaken, but it is only a subordinate instance." Lawler v. Railroad Co., 16 Amer. Rep. 498. "A fellow-servant," says the court in McAdams v. Burnes, 30 N. J. Law, 117, "is one who serves and is controlled by the same master. Common employment is service of such kind that, in the exercise of ordinary sagacity, all who engage in it may be able to foresee when accepting it that through the carelessness of fellow-servants it may probably expose them to injury." Or, as more fully expressed by WILLIAMS, J., in the case of Baird v. Pettit, 70 Pa. St. 477, 482: "Servants, it is said, are engaged in a common employment where each of them is occupied in service of such a kind that all the others, in the exercise of ordinary sagacity, ought to be able to foresee, when accepting their employment, that it may probably expose them to the risk of injury in case he is negligent. ...