Stephani v. Southern Pacific Co.

• Decision Date: 03 April 1899
• Court: Utah Supreme Court
• Parties: JOSEPH STEPHANI, PLAINTIFF AND APPELLANT, v. SOUTHERN PACIFIC COMPANY, A CORPORATION, DEFENDANT AND RESPONDENT

57 P. 34

19 Utah 196

JOSEPH STEPHANI, PLAINTIFF AND APPELLANT, v. SOUTHERN PACIFIC COMPANY, A CORPORATION, DEFENDANT AND RESPONDENT

Supreme Court of Utah

April 3, 1899

Appeal from the Second District Court, Weber County, Hon. H. H Rolapp, Judge.

Action by plaintiff for damages on account of personal injuries alleged to have occurred through the negligence of the defendant company in running its engine over and upon the plaintiff, who was a track walker in the employ of the defendant company.

From a judgment of non-suit plaintiff appeals.

Affirmed.

Messrs J. H. and H. R. McMillan, for appellant.

That the engineer and the plaintiff were not fellow servants see Chicago, etc., R. Co. v. Ross, 15 S.Ct. 190.

Unless plaintiff and the conductor were in the same common employment they can not be said to be fellow servants. Sherman and Redfield on Negligence (5th ed.), Vol. 1, Sec. 234.

In Illinois, Missouri, Kansas, Kentucky, Nebraska, Utah and perhaps elsewhere, what may be called the "Association" rule is established. Under this rule, fellow servants are not in the "same common employment," unless they are so engaged that their duties bring them into association with each other, either generally or at the time of the injury in question, to such a degree that they can exercise some influence upon each other, in favor of care and caution for their mutual safety. R. R. v. O'Connor, 77 Ill. 391; Rolling Mill Co. v. Johnson, 114 Ill. 57; R. R. Co. v. Morando, 108 Ill. 580; Ry. Co. v. Kelly, 127 Ill. 631; 21 N.E. 203; Ry. Co. v. Morando, 92 Ill. 302; Dixon v. Ry. Co., 109 Mo. 413; 19 S.W. 412; Sullivan v. Ry. Co., 97 Mo. 113; 10 S.W. 852; Ry. Co. v. Norment, 84 Va. 167; 4 S.E. 211; Dick v. Ry. Co., 38 Ohio St. 389; Ry. Co. v. Cavens, 9 Bush., 559; Madden v. Ry. Co., 28 W.Va. 610; Daniel v. Ry. Co., 36 W.Va. 397; Ry. Co. v. Carroll, 62 Tenn. 342; Ry. Co. v. Spence, 92 Tenn. 173; 23 S.W. 211; Ry. Co. v. Goldwin, 56 Ga. 196; Palmer v. Ry. Co., 2 Idaho, 290; 13 P. 427; Boatwright v. Ry. Co., 25 S.C. 128; Towns v. Ry. Co., 37 La. Ann. 630; Van Amberg v. R. R. Co., 37 La. Ann. 650; McGill v. Ry. Co., 33 P. 281; Hamberg v. Ry. Co., 53 P. 727; Ry. Co. v. Weaver, 35 Kan. 412; 11 P. 408; Ry. Co. v. Erickson, 41 Neb. 1; 59 N.W. 347; Ry. Co. v. Krayenbahl, 48 Neb. 553; 67 N.W. 447; Ry. Co. v. Ryan, 29 S.W. 557; Armstrong v. Ry. Co., 8 Utah 420; 32 P. 693; Webb v. Denver, 7 Utah 363; 26 P. 981; Openshaw v. Ry. Co., 6 Utah 137.

The conductor of a railway train is not a fellow servant with a truckman upon the train. Openshaw v. Ry. Co. 6 Utah 137.

See also, Armstrong v. Ry. Co., 8 Utah 422; Wells v. Ry. Co., 7 Utah 367.

The court erred in not submitting the case to the jury under proper instructions. Saunders v. Southern Pacific Co., 13 Utah 375.

If the fireman was needed on the engine to attend to the fire and perform his duties on the engine, then the defendant was negligent in not furnishing another man to act as flagman, since sufficient help was not furnished. Wright v. Southern Pacific Co., 14 Utah 383; Wright v. Southern Pacific Co., 15 Utah 422.

Messrs. Marshall, Royle & Hempstead, for respondent.

A common day laborer in the employ of a railroad company, who, while working for the company under the order and direction of a section "boss," or foreman, on a culvert on the line of the company's road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company's road, is a fellow servant with such engineer and such conductor in such a sense as exempts the railroad company from liability for the injury so inflicted. N. P. R. Co. v. Hambly, 154 U.S. 349; Farwell v. Boston & Worcester R., 4 Met. (Mass.), 49; Clifford v. Old Colony R., 141 Mass. 564; Brodeur v. Valley Falls Co., 17 A. 54; Harvy v. N.Y. Central R., 88 N.Y. 481; Gormley v. Ohio & Mississippi Ry., 72 Ind. 31; Collins v. St. Paul & Sioux City R., 33 Minn. 31; Pennsylvania Ry. v. Wachter, 60 Md. 395; Houston, etc., Ry. v. Rider, 62 Tex. 267; St Louis & Iron Mountain Ry. v. Shackelford, 42 Ark. 417; Burke v. Maine Central R., 70 Maine, 60; Ryan v. Cumberland Valley R., 23 Penn., 384; Sullivan v. Miss. & Mo. R., 11 Iowa 421; Fowler v. Chicago & N.W. Ry., 61 Wis. 159; Kirk v. Atlantic, etc., Ry., 94 N.C. 625; Quincy Mg. Co. v. Kitts, 42 Mich. 34; Keystone Bridge Co. v. Newberry, 96 Penn. St., 246.

We draw the attention of the court to a few cases similar to the one at bar. In each the employee injured was a servant employed about the company's track as section hand, repairer, walker, etc., while the offending employee whose negligence caused the injury was employed on or about the company's trains, and in every instance the court held the two employees stood in relation of fellow servants. Collins v. St. Paul & Sioux City R., 30 Minn. 31; Pennsylvania R. v. Wachter, 60 Md. 395; Burke v. Maine Central R., 70 Maine, 60; Gormley v. Ohio & Miss. Ry., 72 Ind. 31; Corbett v. St. Louis I. M. & S. R. Co., 26 Mo.App. 621; Schultz v. Chicago & N.W. R. Co., 67 Wis. 616. Clifford v. Old Colony R., 141 Mass. 564; Houston, etc., Ry. v. Rider, 62 Tex. 267; O'Connell v. Baltimore & O. R. Co., 20 Md. 212; Ryan & Cumberland Valley R., 23 Penn. St., 384; Baltimore & O. R. v. State, 41 Md. 227; Van Wickle v. Manhattan R. Co., 22 F. 278; Ohio & M. R. Co., v. Tindall, 13 Ind. 366; Whaalan v. Mad River L. E. R. Co., 8 Ohio St., 249; Coon v. Syracuse & I. R. Co., 5 N.Y. 492; St. Louis & Iron Mountain Ry. v. Shackelford, 42 Ark. 417; Sullivan v. Miss. & Co., R., 11 Iowa 421; Connolly v. Minneapolis E. R. Co., 38 Minn. 80.

MINER, J., delivered the opinion of the court. BARTCH, C. J., concurs.

OPINION

MINER, J.

STATEMENT OF FACTS.

This action was brought to recover damages caused by the alleged negligence of the defendant in running its engine over and upon the plaintiff, to his injury. The record shows that on the 30th day of July, 1897, a wreck had occurred on defendant's road a short distance east of Palisades, in the State of Nevada. The engine and tender by which plaintiff was afterward injured had that morning arrived at Palisades with a train from the west, and its passage east being obstructed by the wreck, it was at Palisades detached from the train, and sent back west to enable it to reach a turn-table at Winnemucka, 110 miles west, which was the nearest turn-table to Palisades which could be reached, owing to the obstruction east of Palisades. The engine and tender were compelled to go west backwards, or in other words, the tender in front, and the boiler and cow-catcher behind. The engine and tender so backing west had its usual attendants, to wit,-- an engineer and fireman, there being no train attached thereto. The road master whose duty it was to remove the wreck, had a number of his section hands at work at a point thirteen miles west of Palisades, and desired to have them notified to come to Palisades, and from there go to the wreck and assist in the removal thereof, so as to open the road for travel to the east. For the purpose of notifying them, he sent the plaintiff, who was one of the section hands and track-walker, on a railroad velocipede from Palisades to notify these men and bring them to Palisades for the proposed work. The plaintiff on that day started west from Palisades a short time before the engine and tender started, and at a distance of about one and one-half miles west of Palisades was run into by the engine and tender, and suffered the injury complained of. The engine ran through the canon without ringing the bell, or blowing the whistle; the plaintiff looked behind him every minute or two. The engineer could not see the plaintiff before the accident, but the fireman did see him ten or fifteen feet ahead, and called to the engineer to stop. The engineer reversed the engine, and did all he could do to stop it, and succeeded in doing so after running about twenty feet beyond the point of the accident. The road at the point of the injury and for some distance both east and west thereof passed over many curves, and high cuts, thus obstructing the view of the engineer and fireman, and preventing their seeing the plaintiff until within a few feet of him. At the time of the accident, the engine was moving at the rate of about ten miles an hour. On this state of facts the appellant contends that the non-suit granted by the court below was improperly granted, and that there was a liability on the part of the respondent.

After stating the facts, MINER, J., delivered the opinion of the court.

It was admitted at the trial that no statute existed in Nevada at the time of the injury complained of changing the rule of the common law with reference to fellow servants or defining what a fellow servant is, as in Utah and that the common law prevailed in that State and still prevails there. At the time of the injury the plaintiff was a common laborer and track walker on defendant's road, working with others under orders of Mr. Cannon, a section boss, who ordered the plaintiff to go to Twelve Mile Canon, where he was going when injured. Mr. Cole was road master, having authority over the section boss.

The first question to be determined is whether or not at the time of the injury in Nevada the plaintiff was a fellow servant of the engineer, and whether the court erred in granting a non-suit. By the stipulation referred to, this question is to be determined under the rules of the common law, and not under the statute of this State defining what fellow servants are. The authorities bearing upon this question are hopelessly divided upon the general subject of fellow servants, as well as upon the other questions here involved. It is useless to undertake to analyze the cases which...