Walker v. Lake Shore & M.S. Ry. Co.
| Decision Date | 16 April 1895 |
| Citation | 62 N.W. 1032,104 Mich. 606 |
| Parties | WALKER v. LAKE SHORE & M. S. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Kalamazoo county; George M. Buck, Judge.
Action by Robert Walker, administrator of the estate of John Walker deceased, against the Lake Shore & Michigan Southern Railway Company, to recover for the wrongful death of deceased. From a judgment for plaintiff, defendant brings error. Reversed.
Boudeman & Adams and C. E. Weaver, for appellant.
Osborn Mills & Master (E. S. Roos, of counsel), for appellee.
This action is instituted to recover damages sustained by the wife and children of deceased by his death, which is alleged to have occurred through the negligent fault of defendant. Deceased had been in the employ of defendant company for some time as a section boss. His duties were to maintain his section of track, and keep it in good repair for the safe passage of trains and traffic on the road generally. Henry H Houghton was the road master of the Kalamazoo Division of defendant's road, having headquarters at Kalamazoo, and was the superior of deceased. Some time prior to April 11 1893, the officers of defendant had been informed that the Citizens' Street-Railway Company, a corporation having a franchise from the city of Kalamazoo to occupy certain of its streets with an electric railway, was about to cross its track on East Main street with rails for street cars, and was about to stretch across the track a trolley wire. The engineer of the company wrote to Mr. Houghton as follows: Later, on the 21st of April, the engineer again wrote Mr. Houghton: On the morning of the 26th of April, Mr. Houghton discovered that the street-railway company had strung its trolley wire over the track. The evidence shows that before this time he had some talk with Mr. Walker, deceased, with reference to preventing the placing of the trolley wire over the track. There was testimony from which the jury might have properly inferred and did infer and find that deceased, in what he did thereafter, was acting under the instructions and special orders of Houghton. The manner in which the death of Mr. Walker was occasioned is as follows: A box car was run underneath the wire. The plaintiff climbed upon the car, and, taking with him a stepladder, which was placed on top of the car, stepped up one or two steps, and drew the wire down, throwing one arm over it, and, with a pair of nippers, cut it until it parted, and, by force of the recoil, threw him from the car to the ground, some 16 feet from the car, causing his death. The evidence showed that the wife was about one-third of an inch in diameter, and its breaking strength was about 3,000 pounds; that the outer portion of the wire was copper, while the inside or core was soft. The wire was stretched across the track at a tension of about 2,000 pounds. The evidence showed that deceased was wholly inexperienced in such work, and that no warning or information of the danger to be apprehended was given, except that Mr. Secord, one of the linemen of defendant, told him to hold the nippers loosely in his hand. There was also testimony tending to show that, while the appliances which were used by the deceased were proper when used in connection with other appliances, when used alone they were improper and insufficient; that proper appliances would include blocks and falls, with heavy halter clamps, on either side of the place to be opened and cut, so that the slack may be pulled together, and the tension let off slowly and gradually.
The case was submitted to the jury, under instructions substantially as follows: If the work of removing the obstruction by cutting the wire was within the line of deceased's duty as section boss, plaintiff could not recover; also, that if Walker, the deceased, not being required or requested by any one to do the work of cutting the wire, volunteered to do so, and the accident which resulted in his death was brought about by his inattention to the instructions given him by Mr. Secord, and his want of due care and caution, plaintiff could not recover; and, further: "If the cutting of the wire in question was not one of the duties of John Walker as section foreman, but he volunteered to do it, without any request being made by any one that he should do it, and in doing it he was injured, because of the manner in which he did the work, then the defendant was not liable in this case to his estate." On the other hand, the jury was instructed, in substance, that if they found that deceased was an inexperienced man in the business, and did not appreciate or understand the danger to be apprehended from the work in which he was engaged, and if the defendant knew that he was inexperienced in such work, and did not give him sufficient instructions and directions as to the manner of cutting and removing the wire, or inform him of the danger which he would run in cutting the same, and did not provide for proper control or holding of the trolley wire or support for the stepladder while he was engaged in cutting the wire, and if deceased was thrown out and met with his death without negligence on his own part, and in consequence of the negligence of defendant, and if deceased was ordered and directed to cut the wire, and was supplied with the nippers and pliers for that purpose, then the plaintiff was entitled to a verdict. With these instructions, and appropriate definitions of the term "negligence," and other specific instructions requested, the case was left to the jury, and a verdict was found in favor of the plaintiff.
It is insisted by the defendant that Houghton and Walker were fellow servants, and that, therefore, the instructions given by Houghton to Walker, if they led him into danger, were the instructions of a fellow servant, for which the company is not liable. But we think this contention cannot be upheld. In determining whether a servant is called upon to do work outside the scope of his employment, the question does not turn upon that of whether the company would be liable for the personal negligence of a superior servant. It becomes a question of authority, and, if one having authority over the servant directs him to do an act outside the scope of his employment, the servant, in the performance of such outside work, assumes the risk only if such danger is apparent. As is said in Bailey on Master's Liability (page 221): "The same duty rests upon the master as to warning and instructions as to duties within the scope of the employment, but, as to temporary work outside of the employment, the same presumption does not apply, to wit, 'that he [the servant] is competent to perform the duties of the position which he seeks, and competent to apprehend and avoid all dangers that may be discovered by ordinary care.' However, he is presumed to know and comprehend obvious dangers, which require no skill or experience to appreciate, or such obvious dangers as the skill and experience he may have ought reasonably to charge him with. If, therefore, a common laborer who attempts to perform a hazardous service temporarily, outside of his employment, upon request of the master, though not objecting, is injured while performing such duty, his apparent consent alone will not defeat his right of recovery, though the danger is apparent to a person possessed of skill, but not to a common laborer. See, also, Railway Co. v. Adams, 105 Ind. 165, 5 N.E. 187; Ferren v. Railroad Co., 143 Mass. 197, 9 N.E. 608; Kain v. Smith, 89 N.Y. 375; Mann v. Print Works, 11 R.I. 152; Paule v. Mining Co., 80 Wis. 356, 50 N.W. 189. In order to bring the injured servant within the protection of the rule that, when called upon to perform a service outside of the scope of his employment, the master owes the duty of warning him against all dangers, except those which are obvious to a person of his capacity, skill, and experience, it is not necessary that the order to engage in outside service be given by the alter ego of the defendant. If is enough if the superior servant have, in this respect, controlling authority. Railway Co. v. Bayfield, 37 Mich. 212; Jones v. Railway Co., 49 Mich. 573, 14 N.W. 551.
It is further insisted that the danger was as apparent to the deceased as it was to any one, and that, therefore, in consenting to engage in this work without objection, deceased assumed the risk of the employment. We are not prepared to hold that this is true as matter of law. It appeared that the deceased was wholly unskilled in the work, and that trolley wires were new in the city of Kalamazoo. It does not appear that he knew...
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