Towns v. Monongahela Ry. Co.
| Decision Date | 20 May 1930 |
| Docket Number | 6665. |
| Parties | TOWNS v. MONONGAHELA RY. CO. |
| Court | West Virginia Supreme Court |
Submitted April 22, 1930.
Rehearing Denied July 17, 1930.
Syllabus by the Court.
Master's liability for fellow servant's negligence is not dependent on grade of servants but on character of negligent act.
"A master's liability to one servant for the negligence of another is not dependent on the grade of the servants, nor on the fact that one has authority over the other, but on the character of the negligent act." Jackson v. Norfolk & W. R. Co., 43 W.Va. 380, 27 S.E. 278, 279, 31 S.E 258, 46 L. R. A. 337.
Foreman who negligently failed to see danger signal at closed switch in time to avoid injury to section hands operating hand car held fellow servant, for whose negligence employer was not responsible.
A case in which the foreman of a force of men employed in maintenance of the tracks of a railroad company is held to be a fellow servant of the men composing such force.
Additional Syllabus by Editorial Staff.
Railroad employees in closing switch against south-bound traffic were not negligent with respect to section hand operating hand car, where no trains were due from north.
Section hand operating hand car was not guilty of contributory negligence in failing to observe danger signal at closed switch.
Error to Circuit Court, Marion County.
Action by John A. Towns against the Monongahela Railway Company. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
Rollo J. Conley, of Fairmont, for plaintiff in error.
Victor H. Shaw, of Fairmont, for defendant in error.
Plaintiff was working on a section force for defendant, and on the 26th day of October, 1925, as he was proceeding to work riding on a hand car running in a southerly direction with his foreman, Sayre, and four other workmen, he was thrown from the hand car and severely injured when the car ran into a switch which was closed against traffic proceeding in the direction that the hand car was going. The switch had been left in its then condition--that is, closed against southbound traffic and open to north-bound traffic-- by the crew of a work train which was standing on the main track a few hundred feet south of the switch. All of the men on the hand car, except the foreman, were assisting in propelling it by means of an up and down pump or lever arrangement of the ordinary and familiar type. Plaintiff and two of his companions were facing in the direction of their travel operating the rear lever; two other workmen were operating the front lever --one man facing in each direction. As the men operating one lever bent forward, the men at the other lever straightened up. The foreman was standing on the car by the foot brake, facing in the direction of travel. Neither the foreman nor any of the men in the crew saw the red danger signal at the switch in time to prevent the hand car from being derailed by the closed switch.
When this case was reviewed on the first writ of error, it was held that at the time of plaintiff's injury he was engaged in intrastate traffic; the judgment of the trial court was reversed, the verdict set aside, and a new trial awarded because the trial court had improperly submitted to the jury as a question of fact the legal question of whether the plaintiff was engaged in intrastate or interstate traffic, and in permitting the jury to decide on which basis (federal or state) the liability or nonliability of the defendant should be determined; there being no dispute in the evidence of the facts determinative of the nature of the employment. Towns v. Ry. Co., 105 W.Va. 572, 144 S.E. 289. On retrial a verdict was returned and judgment rendered against the defendant for $9,250. The present writ of error followed.
On the day of the accident the crew of the work train was working under orders. A flagman had been sent south to protect it against north-bound traffic. No flagman had been sent north. The explanation of this is that the work train crew knew from their orders and the regular train schedule that at and around the time of the accident, 9:30 a. m there was no train due from the north. And it is in evidence that, even if a train had approached from the north, the weight of either a locomotive or a car would have carried it safely through the switch.
Under the whole evidence we perceive no negligence on the part of the defendant's servants in permitting the switch to be closed against south-bound traffic.
There was no contributory negligence on the part of the plaintiff. Though he was facing the front, the constant up and down movement of his body as he exerted his strength on the lever to assist in propelling the car, with his hat pulled down over his forehead to resist the breeze caused by the momentum of the car, which was moving at a speed of about twelve miles per hour, his opportunity to observe a danger signal or a closed switch ahead was almost nil. The foreman, unoccupied in propelling the car, was on the lookout. The plaintiff and his associates had a right to rely on the watchfulness of the foreman to protect them from danger. It was the foreman's duty to see the danger signal at the closed switch and to cause the hand car to be stopped in time to prevent accident. Especially is this true in the light of the fact that on the preceding day the foreman stopped the hand car at the same switch, opened the switch for the car to pass through, and then reclosed the switch.
Was the foreman, at the time of his negligent conduct in failing to see the danger signal at the switch in time to avoid the accident, a fellow servant of the plaintiff, or was he a vice principal? If the former, the plaintiff cannot recover; if the latter, he can. Similar questions have perplexed courts since the conception of the fellow servant rule.
They are constantly presenting themselves and demanding solution. The most that courts can do is to formulate a general rule or doctrine and test each case by such standard. Our own court has been called upon to decide such questions in numerous instances. The change wrought in this doctrine in the latter part of the nineteenth century is truly reflected in this court's decisions.
In Criswell v. Ry. Co., 30 W.Va. 798, 6 S.E. 31, decided in 1888, the plaintiff's intestate, a laborer employed by the defendant, was killed while riding on a hand car to his place of work; the hand car collided with an extra passenger train. The foreman in charge of the hand car had not used the proper caution in ascertaining information that the extra train was to be run, and in not obtaining such information he had violated one of the rules of the company. Syllabus 1 of that case reads: "When a railroad company puts a foreman in charge of a gang of laborers with power to discharge them subject to the approval of the supervisor, and makes it his duty to see that these laborers faithfully perform their duty, such foreman must, in the performance of all his duties to those laborers under him, be regarded as the representative of the railroad company; and if, through his neglect of duty, one of these laborers, in the performance of his duty, is injured, he may recover of the railroad company the damages he has sustained, caused by the negligence of such foreman." It can be seen that the test laid down here as to the status of the foreman is one dependent upon rank or grade. Because the foreman had it within his power to discharge laborers under him, he became ipso facto the representative of the defendant, and his negligence was therefore that of the defendant.
This doctrine was in conformity with the prevailing doctrine of the time as laid down in the case of Railroad Company v. Ross, 112 U.S. 377, 5 S.Ct. 184, 28 L.Ed. 787, decided in 1884. In that case, the conductor of a railroad train, upon whom rested the right to command the movements of the train and to control persons employed upon it, was held not to bear the relationship of a fellow servant to the engineer who was injured through the conductor's neglect. As a consequence, the railroad responded in damages at the suit of the engineer. This plainly illustrates the principle that the liability of the defendant rested upon the relationship as to grade of the employees. However, this standard was not long lived, for in 1893 the Supreme Court held in the case of Railroad Company v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772, that an engineer who was in control of his fireman, and hence his superior in rank, was not for that reason a vice principal, so that his negligence would fasten liability on the railroad company. There has been an attempt to distinguish the Baugh Case from the Ross Case on the facts, but in truth a different doctrine was adopted in the later case, namely, that the liability of a railroad to one of its employees who has been injured through the negligence of a fellow employee is dependent upon the character of the negligent act rather than the rank or grade of the negligent employee.
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