Hannibal & St. Joseph Railroad v. Fox , 31 Kan. 586 ( 1884 )

The opinion of the court was delivered by

Horton, C. J.:

This was an action to recover damages on account of certain personal injuries received by Fox, plaintiff below, while engaged in the service of the railroad company, by the alleged negligence of the company and its employes. The evidence in behalf of Fox tended to show that on March 3, 1883, Robert Lovell was the foreman, or boss car, repairer, in the yards of the railroad company at St. Joseph, Mo.; that Harris Harrington was the yard master of the company, and had control of the movement of cars at the same place; that Lovell had under his orders two day repairers and one night repairer; that Fox was one of the day repairers; that Fox and Edward Powers were ordered by Lovell to go under a car in the yards of the company in the said city of St. Joseph for the purpose of repairing the car; that they took with them the tools necessary to make the repairs; that while they were working under the car, other cars pushed this car along upon the track in such a manner as to cause the car to break and mangle the left arm of Fox; that Fox bad nothing to do with the movement of the cars pushed against the ear under which he was working; that he did not know and could not have known, in the situation he was working, that cars were being pushed against the car under which he was, until they struck the car; that no notice or warning from Lovell, or by signal bell or otherwise, was given to him of the approach of the cars; that it was not in his power to prevent the collision of the cars; that at the time, Robert Lovell, the foreman, was present, overseeing the work; that by the order of Lovell the ear which was pushed over plaintiff’s arm was set on the track at the place where it was being repaired; that four or five days after the injury, Lovell was discharged from the employ of the company; that the latter had frequently applied to the company for flags to designate cars that were to be repaired, but up to this time they had not been furnished; that at this time the only means that Harrington, the yard master, had of knowing the car repairers were at work, upon a car, was by the foreman or boss repairer telling him when and where he was going to repair a car; that after the injury to Fox, signal flags were used to designate the cars that were being repaired.

It is claimed for the railroad company that the petition failed to state any cause of action; that the trial court erred in overruling the demurrer to the evidence of Fox; that the court erred in refusing to direct the jury to find for the railroad company; that the court erred in the instructions given and excepted to; and finally, that the court erred in refusing to enter judgment for the company upon the special findings of fact returned by the jury.

The principal question in this case is, whether the railroad company was guilty of negligence toward Fox. The injury complained of occurred in the state of Missouri, and it is conceded that the common law as to the liability of master for injuries to servants is in force in that state.

The contention of the railroad company is, that the petition attempted to state a right of action based on an injury caused by the negligence of a fellow-servant; that all the acts of negligence charged or proved were purely and simply acts of negligence of a fellow-servant, for which, under the common law, the railroad company was not liable. In support of this, it is further contended that the foreman or boss car repairer was a fellow-servant with the subordinate employes under his control. We do not concur in this view. In Railroad Co. v. Salmon, 14 Kas. 524, in speaking of the officers, agents and servants of a railroad company empowered to furnish proper implements, machinery and materials for the employes to operate with in accomplishing their work, it was said that—

“ These higher officers, agents or servants cannot with any degree of propriety be termed fellow-servants with the other employes, who do not possess any such extensive powers, and who have no choice but to obey such superior officers, agents, or servants. Such higher officers, agents or servants must be deemed in all cases, when they act within the scope of their authority, to act for their principal, in the place of their principal, and in fact, to be the principal. We also think that it is the duty of a railroad company, with reference to both passengers and employes, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid injury from collision or from any other source.....If an employe performs the duties of of one of the higher officers, agents or servants of which we have already spoken, the company is generally responsible for his negligence, whatever may be his grade.”

One of the exceptions to the general rule of the common law, that the master is not liable to one employe for the negligence of a co-employe in the same service, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. If it were otherwise, the master would be released from all obligation to make reparation to an employe in a subordinate position for any injury caused by the wrongful conduct of the persons placed over him, whether they were fellow-servants in the same common service, or not. In Railroad Co. v. Holt, 29 Kas. 152, it was said:

“The rule is, even under the common law, that a master employing servants upon any work, particularly a dangerous work, mpst use due and reasonable diligence that he does not induce them to work under the notion that they are working with proper and safe machinery, while employing defective and dangerous machinery; and if an employe is injured on that account, and without fault of his own, the master is liable in damages.”

In Railroad Co. v. Moore, 29 Kas. 633, it was said:

“In all cases at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work. . . . And at common law, whenever the master delegates to any officer, servant, agent,- or employe, high or low, the performance of any duty which really devolves upon the master himself, then such officer, servant, agent or employe stands in the place of the master and becomes a substitute for the master — a vice-principal — and the master is liable for his acts or his negligence.”

In the late case of Railroad Co. v. Moore, ante, p. 197, it was decided that—

“At common law, a railroad company is liable to a brakeman for injuries caused by the negligence of the road master or foreman, whose duty it was, over a portion of the road, to direct repairs and keep it in safe condition.”

These authorities and many others which might be cited, establish, we think, that it was the duty of the railroad company to make such provisions and regulations for the safety of the subordinate employes under the control and direction of Lovell as would afford them reasonable protection from the dangers incident to the performance of their respective duties. It was therefore the duty of the company to protect them from the dangers to which they were exposed from moving trains while engaged in the work of repairing cars. Without such protection they were, while at work, constantly in imminent danger. If the company had furnished flags to designate the cars that were being repaired, and these had been placed in the center of the rails near the car under which Fox was working, they would undoubtedly have prevented the injury complained of; but the company furnished no flags. It left everything concerning the work of repairing the cars, the control of the subordinate employes, and their protection while engaged in their work, to Lovell. He was not only the foreman to direct the work of his subordinates, but he was the person above all others to provide that they had a reasonably safe place at which to work; and while he was present, overseeing their work, upon him devolved the duty of using ordinary care and diligence to prevent them from being injured,.mangled or crushed by other'trains or cars moving the one under which he had placed them. It is immaterial, therefore, whether Lovell be called superintendent, middleman, boss repairer, or foreman. The duty devolved upon him to direct his subordinates to work in a peculiarly dangerous place, where by the exercise of reasonable care they could not protect themselves from approaching trains of cars; and under such circumstances, the duty devolved upon him as the representative of the company, to protect his subordinates while at work from the switching of cars and the making up of trains on the same track. He failed to perform his duty. For his negligence in this respect the company is liable. The latter cannot in this matter interpose between itself and Fox, who has been injured without fault on his part, the personal responsibility of Lovell, who in exercising the company’s authority has violated the duty he owed, as well to Fox as to the company. (Hough v. Rly. Co., 100 U. S. 213, and eases there cited; Rly. Co. v. Lavalley, 36 Ohio St. 221.)

All the exceptions taken must be overruled. If the allegations in the petition were in any manner indefinite or uncertain, as alleged by counsel, application should have been made to compel the plaintiff below to make the petition definite and certain by amendment. (Code, §119; Insurance Co. v. Duffey, 2 Kas. 347; Meagher v. Morgan, 3 id. 372; Smith v. Burnes, 8 id. 197; Railroad Co. v. Comm’rs of Douglas Co., 18 id. 169.)

Under the circumstances, we do not regard the damages as excessive. (Railway Co. v. Young, 19 id. 488; Railroad Co. v. Moore, ante, p. 197.)

With the conclusions we have reached, it is unnecessary to comment upon the other questions presented. We are convinced that there is no error appearing upon the record to justify a reversal of the judgment. Therefore the judgment of the district court must be affirmed.

Valentine, J., concurring.