Criswell v. Montana Central Railway Co. , 17 Mont. 189 ( 1895 )

Pemberton, C. J.

The defendant contends that the court erred in submitting to the- jury the question whether the de fendant or the Great Northern Railway Company was operat ing that part of the railroad involved in this controversy at the time plaintiff was injured, and that, the court having submitted the question, the evidence did not warrant the finding of the jury that the defendant was operating it. This was an issue raised by the pleadings. The plaintiff alleged in his complaint that the defendant was operating the road, and the defendant, in its answer, denied it, and alleged affirmatively that the Great Northern Railway Company Was operating the line at the time of the injury. So we think there was not only no error in submitting this question to the jury, but that, under the pleadings, the court was required so to do. And in- this connection it is proper to remark that the court submitted it most favorably to the defendant in the instructions given.

The record discloses some conflict in the evidence upon which the jury acted in arriving at the conclusion that the defendant was operating the road at the time in controversy. But it seems to be unnecessary to notice at length this conflict in the evidence. It is evident that the plaintiff was employed by the authorized officers of the defendant company; that he was paid by the defendant for his services; that the posted orders and bulletins in the bulletin books at the stations on the road showed that the defendant was operating the road, through its officers, at the time in controversy. It may be true that there was some private arrangement between the- two companies by which the defendant was operating the road for the Great Northern Railway Company. If so, it does not appear that the plaintiff had any knowledge thereof; nor do we think he should be bound thereby, in view of the uncontradicted fact that he was employed and paid by the defendant, and that so many material facts and circumstances disclosed by the evidence indicated to him and the public that the defendant was operating the road.

We are of opinion that there is sufficient evidence to support the verdict in this respect. And .besides, the district court passed upon this question on the motion for a new trial, and we see no abuse of discretion in its ruling to justify us in reversing its action. We think it clearly appears that the injuries received by plaintiff resulted from the negligent manner of operating the train on which he was employed.

The train had no headlight, or at least no sufficient oné. The conductor, knowing the defective condition of the headlight, should have wired from Floweree, a station on the road, to Great Falls, the headquarters, for permission to bring in his train withput one. The conductor, on arriving at the yard limits at Great Falls without a headlight, should have sent out a flagman to see that the main track was clear before entering. The evidence warranted the finding of the jury that there was negligence. The question whether these acts were the negligent acts of the defendant, or whether the defendant is responsible for such acts of negligence, will be discussed hereafter.

Having arrived at the point and conclusion that plaintiff was injured as a result of the negligence of the persons in charge of the train on which he was employed, we think it unnecessary to discuss the questions raised as to the negligence of the engineer of the switch engine which ran into the train on which plaintiff was employed, and which caused the collision from which his injuries resulted, especially so as it is inferable from the evidence that there would not have been a collision if the train on which plaintiff was working had been supplied with a headlight. It is fair to conclude from the evidence that the engineer of the switch engine could and would have seen the train on the main track which he ran into if it had had a headlight. This strengthens our view that plaintiff’s injuries are attributable to the negligence of the persons in charge of the train on which he was employed.

The really serious and important questions which confront us on this appeal are those involved in the settlement of the law applicable to the case by the district court. The defendant requested the court to give the jury the following instructions:

“(11) Where a person enters into the service of the railroad company he thereby undertakes to run all the ordinary risks to the employment, including his own negligence or unsJdllfulness and that of his fellow servants who are engaged in the same line of duty, provided the company has taken reasonable care and precaution in engaging and retaining competent servants to discharge the duties assigned to them.

“(12) If you believe from the evidence that at the time of the accident in question the plaintiff was in the employ of the defendant as a brakeman on one of its freight trains, and that while so employed, and in the line of his duties, he received an injury resulting from the negligence or want of ordinary care of the engineer in charge of the locomotive which was drawing the train upon which the plaintiff was employed, then the court instructs you, as a matter of law, that the plaintiff and such engineer were fellow servants in the same grade or line of service within the meaning of the law; and the defendant, if otherwise without fault, would not be liable for such injury.”

The court modified the first of these instructions by striking out the words in italics, and refused the second altogether. We presume the court struck out of the first instruction the words “including his own negligence or unskillfulness” for the reason that the instructions given by the court fully, and favorably to the defendant, covered the ground of the plaintiff’s own negligence and unskillfulness. The court struck out of said instruction the words, “and that of his fellow servants who are engaged in the same line of duty,” and refused the second instruction, on account of the court’s view of the law governing the case. This action of the court is assigned as error.

The action of the court in respect to these instructions was confessedly'based upon the opinion that section 697, p. 817, Comp. St. 1887, which reads as follows: “That in every case the liability of the corporation to a servant or employe acting under the orders of his superior, shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employe not appointed or controlled by him as if such servant'or employe were a passenger,” — constituted the law fixing the liability of the defendant in the case, and that the declarations of law as requested were in conflict with that statute. This statute is, therefore, brought before this court for the first time for judicial interpretation.

The counsel for the defendant contends that under the common law the defendant corporation had performed its whole duty to the plaintiff as its employe when it had used ordinary and reasonable care in providing (1) safe machinery, (2) furnishing a safe place to work, and (3) competent fellow servants to prosecute the common employment; and that the statute in question does not increase or change the defendant’s liability at common law; that it does not change the common law in relation to fellow servants; that it- does not establish the superior servant doctrine and enlarge the common-law liability -of the defendant in any respect, and was not so intended by the legislature.

The learned counsel of defendant, in his able and exhaustive -brief, has cited numerous authorities in support of the common-law rule applicable in such cases; but these authorities do not attempt to discuss the effect of such legislation as is here involved upon the common-law rule. It cannot be disputed that the common-law rule has been modified, if not changed, both in England and in many of the American states, by recent legislation on the subject. So we think we may omit a discussion of the common-law rule, and look to the course and effect of modern legislation on this subject.

Beach, in his work on Contributory Negligence, (section 376), says: “It became evident early in the course of the development of the law upon this point that, in order to preserve to the employe any vestige of the right of action which the common law gave him against his employer, in a proper case, for personal injuries attributable to. the negligence of another, and received in the course of the common employment, the tendency to extend the rule which had its inception in England in the case of Priestly v. Fowler, 3 Mees. & W. 1, and in the United States in the early cases of Murray v. Railroad Co., 1 McMast. R. R. Law 385, and Farwell v. Railroad Co., 4 Metc. (Mass.) 49, and under the operation of which the defense of a common employment had come to-be urged to the practical destruction of all such rights of action, would have to be checked, and could only be checked, by legislation. Accordingly, on the 7th of September, 1880, parliament changed the law of England by passing the employers liability act (43 & 44 Vict. c. 42), which, pending its final enactment, was popularly known as the ‘Gladstone Bill, ’ and which, at the time, attracted much attention, both here and in England.’ Section 377 of the same work contains a resume of this act of parliament, and subdivisions 2 and 3, as the author has subdivided the act, are instances in which the master is liable for injuries received by a servant from the negligence of a superior. These subdivisions are as follows: “(2) By reason of the negligence of any person instrusted with superintendence. (3) By rehson of the negligence of any superior workman whose orders the injured person was bound to obey. ” The same author, in section 379, says: “Comparatively recent legislation in several of the states of the Union has in some degree modified for us in this country the rule of nonliability which the courts of every jurisdiction, as we have seen, have uniformly declared. In California, Dakota, Georgia, Kansas, Iowa, Mississippi, Montana, Rhode Island, Wisconsin, Wyoming, Alabama, Massachusetts, and Missouri, statutes, the substance of which is. set out in the notes, have been passed, under the whplesome operation of which the old rule of non liability is practically abrogated. Except in California and Dakota, it may be said that in each of the states just mentioned the old rule is entirely abandoned, and an adequate remedy provided by the statutes for the proper protection of railway employes; while in California and Dakota .the statutes define the limit of liability, and quoad hoc recognize and assert the propriety of legislation upon this subject. ” (The statutes of these several states are given in the notes to this section.) So it will be seen that in the opinion of this author the common-law rule of nonliability in such cases is practically abrogated by such legislation, and entirely abandoned in the states named, including Montana, except in the case of California and Dakota.

But we are not without further light and assistance in the interpretation of the statute under discussion. It has been the subject of direct construction by two of the most respectable courts of the country.

In the United States circuit court of the Northern district of Iowa, in the case of Ragsdale v. Railroad Co., 42 Fed. 383, a case involving directly the construction of this statute, and its effect upon the common-law rule insisted upon in this case, Judge Shiras, delivering the opinion of the court, said : ‘‘On part of plaintiff it is further claimed that the statute of Montana, in force when the accident happened, modifies the comm on-law rule in regard to the liability for the acts of fellow servants,” and, after quoting the statute, he continues : ‘ ‘ This statute does not go to the length of abrogating the general rule that the master is not liable to an employe for the consequences of the negligence of a coemploye, but it does enact, in effect, that a superior is not a coemploye with an inferior, and that one may be a superior, as compared with another, even though the former does not control the latter. The enactment is based upon the known fact that, in carrying on the business of railroading, there are recognized grades-among the numerous classes of employes, and, while they are-all working for a common master, and for an ultimate common result, they are practically not all coservants. The present plaintiff was a fireman, and his duties were limited generally to attending to the furnace and other matters upon the engine. He did not belong to that class of employes that were charged with the duty of controlling the movement of the trains. The answer expressly avers that the collision was caused by the negligence of the officials in command of the movement of train No. 1, and there is no fact averred which tends to show that as to them the plaintiff occupied any other position than that of an inferior, within the meaning of the statute of Montana. The act of negligence set up in the answer is that train Ho. 1 was moved past the telegraph station in violation of the rule of the company, and it is averred that this was done by those in command of such train. It will certainly not be claimed that a fireman upon the engine is an employe, charged with the "control of the moving of the trains, —a duty primarily imposed upon the conductor; and it is certainly the fair inference that in the moving and running of trains the conductor is the superior of a fireman. In other words, the conductor, or party charged with the control of the train, is a superior, as compared with a fireman, within the meaning of the Montana statute. Under this section the corporation is made liable to any one of its employes who, without negligence on his part, is injured by the default or wrongful act of a superior, even though the latter has no control over the former. Whether, therefore, the liability of the defendant corporation is to be determined under the common-law rule or under the statute of Montana, the facts set forth in the answer do not show that the act of negligence causing the collision and consequent injury to plaintiff was the act of a coemploye, but, on the contrary, it would appear therefrom that such act of negligence was the act of the representative of the corporation, who was also the superior of the plaintiff. This being the conclusion, it follows that the answer is insufficient, and the demurrer thereto is sustained. ’ ’

After sustaining the demurrer in the case, as shown above, the defendant amended its answer, and alleged that plaintiff’s injuries were the result of the negligence of the engineer of the train on which plaintiff was employed, whereas, in its original answer, the defendant had alleged that the injuries of plaintiff resulted from the negligence of the conductor of another train. The court sustained a demurrer to the amended answer, and in doing so Judge Shiras said : ‘‘ The amended answer shows that the engineer was primarily charged with the duty of halting the train at Evaro station, and that he negligently failed in the performance of this duty. It seems to me that the same rule must be applied to the one case as to the other and that the reasons which sustain the liability of the company in case of the negligence of the conductor apply with equal force to the negligence of the engineer when such negligence occurred in a matter touching the actual movements of the train, and which was at the time wholly under the control of the engineer. In such matters the engineer represents the company, and for his negligence the company must respond. The demurrer is sustained. ’ ’

In the circuit court of appeals, Eighth circuit, in Northern Pac. R. R. Co. v. Mase, 11 C. C. A. 63, 63 Fed. 114, decided July 16, 1894, — a case involving directly the interpretation of the Montana statute under discussion, and its effect upon the common-law rule, — Judge Sanborn, speaking for the court, said: ‘ ‘The result is that the right of recovery in this action, if it exists at all, must rest in the statute of Montana, ’ ’ and, after citing the statute, proceeded as follows : ‘ ‘ This séction is found in a chapter of the general laws of Montana relating to railroad corporations, and it seems to affect the liability of such corporations only. It goes without saying that the purpose of this statute was to extend the liability of railroad companies to their servants for the negligence of servants of a higher grade. It is equally clear that the pronoun ‘ him ’ in the clause, ‘ or to an employe not appointed or controlled by him,’ refers to the employe’s ‘superior,’ and that the intention of the legislature was to extend the liabilities of the companies for the negligence of superior servants for the benefit of two classes of employes, viz : those injured by the default or wrongful' act of a superior employe under whose orders they were acting, and those injured by the default or wrongful act of a superior servant who did not appoint, and who had no control over them. The statute is inartificially drawn, but its meaning is not doubtful, and its obscurity at once disappears if the clause, ‘ or to an employe not appointed or controlled by him, ’ is transposed to its grammatical and logical position in the sentence, and placed before the verb. Then the statute would read : ‘ That in every case the liability of the corporation to a servant or employe acting under the orders of his superior, or to an employe not appointed or controlled by him, shall be the same in case of injury sustained by default or wrongful act of his superior as if such servant or employe were a passenger. ’ Now, the conductor whose negligence in leaving the switch open caused the death of a fireman on another train, in this case, was the superior of that fireman in the employment of the same master. His rank or grade in the service was higher. The fireman, it is true, was not acting under his orders, and was not one of the first class protected by the statute, but he was an employe not appointed or controlled’ by this superior, whose default caused his injury; and he was clearly one of the second class, to whom a right of action for such a default was given by this statute. The effect of the statute is to give a cause of action against the railroad company to every servant who is himself without fault, for the default or wrongful act of any superior servant, whether or not the latter appointed or exercised any control over the former before or at the time of the infliction of the injury. This was the construction given to this statute by Judge Shiras, of the Northern district of Iowa, upon the circuit, and we have no doubt of its correctness. (Ragsdale v. Northern Pac. R. R. Co., 42 Fed. 383, 386.) That the railroad company would have been liable for any injury resulting, to a passenger on the train that ran through the open switch from the negligence of the conductor who left it open, admits of no discussion. It follows that under this statute and the stipulation in this case the railroad company was liable to the defendant in error to the same extent for the injury to the deceased fireman that it would have been to a passenger, and on this ground the judgment must be affirmed. It is so ordered. ’ ’

We think from the interpretation given to the statute in question by the above authorities that it cannot be doubted that the common-law rule contended for by defendant was modified and changed thereby, and that such was the intention of that legislation. And it is no less plain that this statute establishes the principle that there is a difference in the grade of the employes engaged in a common employment, and gives a right of action to a servant injured through the negligence of a superior employe or servant against a master, when such injured servant is without fault or negligence on his part. In view of the extent to which the common-law rule has been carried, the enactment of such legislation is not surprising, nor are we prepared to reprobate the wisdom of the policy of establishing a legislative rule that relaxes the rigor of the common-law in such cases. Having arrived at this conclusion, we see no error in the action of the court in this respect.

The defendant contends that the evidence shows that plaintiff was injured as a result of his own carelessness and negligence. This was a question of fact for the determination of the jury. It was submitted to them by the court under instructions remarkably favorable to the defendant. We think the evidence supports the finding that his injuries did not result from his own negligence. We think the evidence clearly establishes the allegation that the plaintiff was injured through the negligence of the conductor and engineer of the train on which plaintiff was employed. As they were the superior employes of the plaintiff, and the plaintiff having been found to have been without fault or negligence, the negligence of such superior employes was the negligence of the defendant.

We have considered the many assignments of error in the record, relating principally to the admission of certain evidence. We think these, and all other assignments not treated above, immaterial, and without merit. The judgment and order appealed from are affirmed.

Affirmed.

He Witt and Hunt, JJ., concur.