Railway Co. v. Torrey ( 1893 )

Mansfield, J.,

1. Doctrine of fellow servants applied. (after stating the facts.) In the matter of merely wrapping the rope of the block and tackle around the brace of the bridge, the foreman was not performing a master’s duty, but an act of labor in common with the labors of the plaintiff ; and as to that act we think the foreman and the plaintiff were fellow servants. If therefore the accident was caused by the foreman’s neglig-ence in wrapping the rope, the defendant was not liable unless its own negligence as master combined with that of the foreman as a laborer, to produce the injury.^* The defendant’s second request, then, so far as it goes, is consistent with the law ; and it was not proper that it should go further, unless there was evidence to justify the court in submitting to the jury the question whether the company was guilty of contributory negligence. The only fact relied upon to prove such negligence was the order directing the plaintiff to hold the block and tackle. As that might have been given by one who had no authority beyond that of overseeing the labor of the carpenters, it would not, in itself, have warranted a finding that the foreman was acting in a representative capacity ; and if he exercised only the power of a mere foreman, then his negligence was not the negligence of the defendant.^† The court’s fourth instruction assumes that there was evidence to show that he had authority to hire and discharge the carpenters. The abstracts do not embrace such evidence. If, however, it was adduced on the trial, its tendency to prove that the company was responsible for any negligence committed by the foreman in giving the order complained of did not necessarily call for the absolute rejection of the defendant’s second request, but only for its modification by the addition of a clause requiring the jury to determine whether there was such negligence, and if there was, whether it contributed to the accident. In refusing the request, and in omitting to make his charge touch upon the point it presents, the trial judge probably held that there was no evidence from which the jury could have reasonably found that the negligent wrapping of the rope was the dominant cause of the injury. But the position in which the rope was found when the engine reachéd it in passing over the bridge, according to the view we get of it from the record, was such that we think the jury might have concluded that, if it had been properly wrapped, it would not have sagged so as to come in contact with the cab ; and that the untimely approach or speed of the train allowed no opportunity to adjust the rope after the plaintiff could with reasonable diligence have discovered the necessity of doing so. On this theory the plaintiff’s injury might therefore have been attributed entirely to the negligence of his fellow servants; and as it was a theory not without support in the evidence, a charge applicable to it might properly have been given.

As already indicated, we are not prepared to hold that the court was right in assuming that there evidence from which the jury might have found the existence of facts sufficient to make the foreman a vice-principal. Conceding, however, for the purposes of this opinion, that there was such evidence, the fourth instruction was not in other respects correct. It told the jury that the plaintiff was entitled to recover if it was shown that he was negligently and carelessly ordered “ by the foreman to a dangerous position, and that, while occupying that dangerous position, and by reason thereof and of said order,- he was injured, while he himself was exercising due care.” This was too general. The court should have stated, as far as it was practicable to do so, the facts which, if proved, would make the order negligent ; and these facts must have been such as involved a failure to perform some duty which the defendant company owed to the plaintiff as its servant. One of the duties it owed him was that of exercising a reasonable care to avoid exposing him to ‘ ‘ unreasonable risks or dangers.” Another duty required the company to warn him of such dangers as he would be exposed to in obeying its orders, and of which it knew or had reason to know he was not apprised. (Wood’s Master & Servant, secs. 348, 352; S. W. Telephone Co. v. Woughter, 56 Ark. 206 ; St. Louis, etc., Co. v. Gaines, 46 Ark. 555.) The terms of the fourth instruction would apply in a general sense as well to one of these duties as to the other; but it defines neither of them, and therefore gives no test of the negligence on which the liability of the defendant depended. And, drawn as it was, it was liable to misconstruction by the jury, and was calculated to mislead them into treating as negligence the mere act of ordering-the plaintiff “to a dangerous position,” although the position may have exposed him to no unusual hazard, and its danger may have been one ordinarily incident to the service he had undertaken to render.

3. Duty of servant. The fifth, sixth and ninth instructions all contain misleading clauses as to the experience or inexperience of the plaintiff as a workman. There was no evidence tending to prove that he was without experience as a bridge carpenter, and none to show that any special training or practice was necessary to enable him to do with safety to himself the act in the performance of which he was injured. And in this part of its charge we think the court could only have said with propriety that, if the jury believed from the evidence that the plaintiff was suddenly called upon to perform an unaccustomed duty, when, by reason of the rapid approach of the engine, he had no time for preparation or reflection, it was proper to consider these circumstances in determining whether he exercised reasonable care. Railway v. Higgins, 53 Ark. 466.

The sixth instruction is objectionable on the additional ground that it seems to make the defendant liable for the foreman’s failure to warn the plaintiff of the danger of holding the rope and block, without regard to whether the foreman knew, or ought to have known, that the plaintiff was not aware of the danger.

For the errors designated, the judgment is reversed, and the cause remanded for a new trial.

* See Wood on Master and Servant, sec. 438 ; 1 Shearman & Redfield, Neg. sec. 233; Fones v. Phillips, 39 Ark. 17 ; Crispin v. Babbitt, 81 N. Y. 516 ; Quinn v. New Jersey Lighterage Co. 23 Fed. Rep. 363 ; Railway Co. v. Triplett, 54 Ark. 299 ; 2 Thompson, Neg. sec. 10, p. 981.

† Fones v. Phillips, 39 Ark. 39; Bloyd v. Railway Co. ante, p. 66.