J. Rosenbaum Grain Co. v. Mitchell , 1911 Tex. App. LEXIS 39 ( 1911 )

I differ from my associates as to the disposition that should be made of this case, and shall here state my reasons.

It must be borne in mind that at the time Mitchell was injured he was engaged in the service of the Chicago, Rock Island Gulf Railway Company as a car inspector, and sustained no business relations toward the appellant, and for that reason the issue of liability is not to be determined by the rules of law applicable exclusively to the relation of master and servant. The place where Mitchell was at work was on the private premises of the appellant grain company, and no express authority is shown allowing him or other employés of the railway company the privilege of going there to perform the character of work in which Mitchell was at the time engaged. I do not think the facts justify the conclusion that Mitchell was more than a mere licensee, or that he was performing a service which in any manner inured to the benefit of the appellant. It is true there was an agreement between the railway company and the appellant by which the former did all the switching for the latter, but this consisted only in placing cars at the north end of appellant's private tracks, and in taking them away from the south end after they had been passed through the elevator and loaded or unloaded. The evidence shows that, where these tracks lay, there was a sufficient declivity in the surface of the earth to cause cars to roll from the north end of the switch through the elevator to the south end by gravitation, and that this was the usual method of handling the cars that were used in the business of the appellant over its switch tracks. There was no evidence showing that the grain company owned any cars, or had any interest in those which its employés handled in loading and unloading grain. Neither is there any evidence showing that any repairs on any of the cars were needed in order to enable the railway company to remove them from those switch tracks in compliance with its engagement to do appellant's switching. On the contrary, it appears from the statements of all the witnesses who testified upon that subject that the inspection and repairs were done at that place solely as a matter of convenience to the railway company or its employés. The witnesses all say that only light repairs were made there; that, when heavy work was required, the cars were taken to another place.

There was testimony going to show that the managing officers of the grain company would not have permitted the use of its tracks for inspecting and repairing cars had they known it was being done. But there was other testimony tending to show that such work had been performed by the railway employés for a considerable length of time and under circumstances that would imply knowledge and consent on the part of the officers and employés of the grain company. If Mitchell was upon the appellant's premises merely by its implied consent, and was performing a service exclusively for the benefit of another party, the extent of his rights would be those of a licensee only. The general rule is that a licensee must take the premises as he finds them, and subject to the use which the licensor makes of them in the conduct of his business. That rule, however, does not relieve the licensor, when operating dangerous machinery, from the duty of exercising a proper degree of care to avoid injuring those who go there by his permission. Nor is the licensee relieved of the duty of exercising a proper degree of care to guard his own safety, taking into consideration the character of the premises and the use ordinarily made of them by the owner. Railway trains and cars, when in motion, are dangerous vehicles, and those in charge of them are at all times required by the dictates of common prudence to take some precautions to prevent collisions and accidents resulting in injury to others. Where injury results from a failure to exercise that degree of care exacted by law under such circumstances, a case of actionable negligence arises, and damages may be recovered, unless defeated by the contributory negligence of the party sustaining the injury. If Mitchell's presence under the car at the time he was injured was known to the appellant's servants, or might have been expected, or if the customary use made of the track was such that they might have expected Mitchell or some of his coemployés to be in situations about the cars making it dangerous to permit collisions between cars, those servants owed the duty of exercising at least ordinary care to give warning of the approach of the car, or to otherwise avoid causing injury. While the evidence relied on to establish the facts sufficient to charge the appellant with actionable negligence toward Mitchell is not entirely satisfactory to me, I am willing to concede that issue and rest my dissent upon other grounds.

The next question, that of contributory negligence which may be chargeable to Mitchell, offers to me a difficulty of greater magnitude. This defense is presented by appellant in its brief in three different forms: First. By a requested peremptory instruction to find for the defendant, because the evidence showed contributory negligence as a matter of law. Second. By requesting the following special charge: "You are instructed, gentlemen of the jury, that if you believe from the evidence that the plaintiff went under said car with full knowledge of the fact that said track No. 5 was then in use by the grain company, and that cars were being dropped down on said track and bumped against the standing cars there every few minutes, or as rapidly as the same could be unloaded, and the plaintiff knew that occupying a substantially prone position under said car on said track was dangerous and hazardous under the circumstances, and that plaintiff went under there with knowledge of these dangers and knowledge of the conditions and knowledge of the manner in which the grain company was using said track, and upon the sole reliance and understanding that his coemployé would keep watch and notify him of approaching danger, and voluntarily assumed said risk and hazard in reliance upon said agreement with his said coemployé, and that the same was a risk and hazard incident to the plaintiff's employment, and voluntarily assumed by the plaintiff at the time, then he cannot recover against the defendant grain company, and your verdict will be for the defendant, J. Rosenbaum Grain Company." Third. By assigning error to the giving of the following portion of the court's main charge: "If you find and believe from the evidence in this case that at and prior to the happening of the accident to plaintiff that the plaintiff was negligent either in failing to put up a blue flag in front of the cars upon which he was at work, or in failing to keep a proper and sufficient lookout for the approach of cars, either by himself or by his companion, or in failing to notify the defendant or its employés in charge of said empty cars of his presence upon the said track, or in the way and manner in which he attempted to do the work at the time of the said accident, and if you further believe that such negligence, if any you find, in any one or all of the foregoing respects, proximately caused or contributed to cause the production of the plaintiff's accident, then you will find plaintiff was guilty of contributory negligence, and, if you so find, your verdict will be for the defendant. But, in this connection, you are instructed that if you believe from the evidence in this case that at the time the plaintiff was injured he was doing or attempting to do the work on said track at the time of the said accident in the way and manner that a person of ordinary prudence under the same or similar circumstances would have done, or attempted to do the same, and if you further believe that the plaintiff did at the time of the said accident, and just prior thereto, exercise ordinary care for one in his circumstances and situation in the performance of the said work, then, if you so find and believe, you will find that the plaintiff was not guilty of contributory negligence, and, if you so find, you will find against defendant on its plea of plaintiff's contributory negligence, and consider the case with reference to the other issues submitted to you in this charge." If there was error in any one of the respects mentioned, it is, I think, sufficiently grave to require a reversal of the judgment.

The testimony shows substantially the following facts: Mitchell was an experienced car inspector, and had been in the service of the Rock Island Railway Company for some time prior to the date of his injury He was familiar with the premises where he was at work, having performed similar services there on former occasions. On the day of his injury he was directed by his immediate superior, the foreman, to go out on the north side and inspect those cars. To use Mitchell's own language, the foreman said: "``Go out there and work them bad order cars on the north side by the elevator.' He didn't say anything about what track I was to use. He didn't know what tracks they were. He didn't say anything to me about taking the usual and ordinary precautions of putting out flags." Upon this occasion Mitchell was accompanied by another railway employé named Jones, and the two were expected to work together, but Mitchell was the "head man." According to the testimony, it was the duty of these inspectors to examine the cars for defects and needed repairs, and to do what they called light repairing, leaving the heavy work to be done at another time and place. Some time during the afternoon on the date of the injury, Mitchell and Jones began inspecting cars on appellant's switch track No. 5. This was called the unloading track, and was used in this manner: Loaded cars were placed on it at the north end of the switch. When wanted, the brakes were released by appellant's employés, and the cars ran by gravitation down to the elevator, where they were unloaded, after which they were rolled on down to the south end, to be carried away by the Rock Island switch engine. The first cars that were run down to the south end had the brakes set on them, and those which came afterward were allowed to bump against the first in order, as the witnesses say, to dislodge the grain that adhered to the walls and lining of the cars. Several cars had been unloaded, and were standing on the south end of the appellant's switch track No. 5 at the time Mitchell and Jones began their inspection of them. The elevator was not exceeding 100 yards distant, and appellant's employés were plainly seen by Mitchell as they were engaged in the business of unloading cars. Neither Mitchell nor Jones gave any notice of their presence, or of their purpose to inspect those cars on that track. They took no precautions to protect themselves against injury, although they knew that the cars were at intervals being run down on that track. It is true that Mitchell at first denied that he knew that track No. 5 was so used, but on cross-examination, and after repeated efforts to extract an admission to that effect, he finally stated that Jones had told him that cars were frequently coming down on track No. 5 from the elevator. Jones, a witness for appellee, testified that both he and Mitchell knew that cars were likely to drop down from the elevator at any time.

Mitchell thus describes what he was doing, and how he was injured: "The accident occurred to me about 5 o'clock in the day. We went on duty at 1 o'clock in the afternoon. I was at work on track No. 5 when the accident occurred, about five or six car lengths south of the elevator. Had been working on that track about a couple of hours. At the time of the accident I was under the car. There were three or four cars in a string on the track, and I was under the south end of the last car screwing some nuts on a draft bolt. My partner (Jones) was on a car or so above me when they turned a car loose from the elevator, and came down and hit me. My right leg was lying over the rail when the car hit." On cross-examination he said: "All the time I worked there I never saw a car coming down on track No. 5. I am not acquainted over there, and did not know what track No. 5 was for. I did not know exactly what it was for. I had not been working out there long enough to know these things. I had been working there 12 or 15 days, something like 3 weeks. I knew they let cars down on track 4, the loading track. I had seen them do that. I suppose they unloaded on track 5. * * * I had never seen them use any track to unload on. * * * When I went under this car, I saw the Rosenbaum elevator people at work up at the elevator. * * * I never paid any attention to what they were doing. They were running around there, and I suppose their business there was to work. * * * It would have been about 300 feet for me to go where they were unloading cars. I could have walked up there, and told them that I was going underneath that car, and found out for certain whether they were going to turn any cars loose there; but it was not the custom for me to do that, and I did not go."

Mitchell and Jones both testified that there was an understanding between themselves that while doing this character of work when one was under a car the other should keep a lookout for him. This was not a rule of the company, but one of their own making. Mitchell also testified that he knew going under the car was dangerous, and says: "Probably I would not have gone under there if I had not had Jones there to keep watch for me. I did depend upon Jones. I don't know that it was Jones' fault. I could not say; but he didn't tell me, but I couldn't say that if I depended on him that his failure to tell me was the occasion of my getting hurt. I was expecting Jones to holler if anything came, and, if he had hollered, I would have got out. I did not hear him holler, and did not get out. I depended on Jones to holler or speak to me if any danger came, but I do not, know that his failure to holler was the reason I did not get out. * * * I could not say exactly what was the reason."

In considering this evidence as bearing upon the care which Mitchell was required to exercise for his own protection, these questions arise: Should we look only to the conduct of Mitchell himself with reference to all his surroundings, including the presence of his fellow workman, Jones, and their mutual understanding about keeping watch under such conditions, and from that conduct alone determine the issue of his contributory negligence? Or should we impute to Mitchell, as a part of that which may justly be chargeable to him under the facts here detailed, any dereliction on the part of Jones which contributed to the injuries sustained? It seems to me that Mitchell's own testimony shows that in going under that car at the time he did, and under the circumstances then surrounding him, he voluntarily assumed a risk too hazardous to comport with ordinary prudence, unless we take into consideration the presence of Jones and his agreement to keep a watch for Mitchell. Notwithstanding Mitchell's apparent evasions, enough was finally elicited from him to show by his own testimony that he was fully cognizant of his surroundings, that he appreciated the danger likely to attend the venture of going under the car, and that he regarded this as too hazardous without having some one to keep a lookout for him. We then have here all the essentials necessary to constitute a well-defined case of contributory negligence if we exclude Mitchell's right to rely upon the understanding with Jones to keep watch. If we recognize that right as a proper element to be considered in testing the prudential quality of Mitchell's conduct on that occasion, we are then brought face to face with the correlative proposition — that of taking into consideration the conduct of Jones and of imputing to Mitchell any negligence of which Jones may have been guilty in failing to keep a lookout. It is upon this proposition mainly that I differ with my associates. Before discussing the principle involved, I shall refer to some of the leading authorities on this subject.

In Little v. Hackett, 116 U.S. 366, 6 S. Ct. 391, 29 L. Ed. 652, Justice Field treats the doctrine of imputed negligence somewhat from an historical standpoint. He said: "The leading case to this effect is the case of Thorogood v. Bryan, decided by the Court of Common Pleas in 1849, 8 C. B. 114. It there appeared that the husband of the plaintiff, whose administratrix she was, was a passenger in an omnibus. The defendant, Mrs. Bryan, was the proprietor of another omnibus running on the same line of road. Both vehicles had started together and frequently passed each other, as either stopped to take up or set down a passenger. The deceased, wishing to alight, did not wait for the omnibus to draw up to the curb, but got out while it was in motion, and far enough from the path to allow another carriage to pass on the near side. The defendant's omnibus coming up at the moment, he was run over, and in a few days afterwards died of the injuries sustained. The court, among other things, instructed the jury that, if they were of the opinion that the want of care on the part of the driver of the omnibus in which deceased was a passenger in not drawing up to the curb to put him down had been conducive to the injury, the verdict must be for the defendant, although her driver was also guilty of negligence. The jury found for the defendant, and the court discharged a rule for a new trial for misdirection, thus sustaining the instruction. The grounds of its decision were, as stated by Justice Coltman, that the deceased, having trusted the party by selecting the particular conveyance in which he was carried, had so far identified himself with the owner and her servants that, if any injury resulted from their negligence, he must be considered a party to it; ``in other words,' to quote his language, ``the passenger is so far identified with the carriage in which he is traveling that want of care on the part of the driver will be a defense of the driver of the carriage which directly caused the injury.'" After reviewing several cases in which the doctrine announced in the case of Thorogood v. Bryan is criticised and repudiated, Justice Field, continuing, said: "Those on a hack do not become responsible for the negligence of the driver, if they exercise no control over him further than to indicate the route they wish to travel, or the places to which they wish to go. If he is their agent so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employment. But, as we have already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who has in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage and riding in it no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability."

The rule, as now recognized by the weight of authority in this country, is thus stated in the Encyclopedia of Law and Procedure: "In order that the concurrent negligence of a third person can be interposed to shield another, whose negligence has caused an injury to one who was without fault, the injured party and the one whose negligence contributed to the injury must have sustained such a relation to each other, in respect to the matter then in progress, that in contemplation of law the negligent act of the third person was, upon the principle of agency, or co-operation in a common or joint enterprise, the act of the person injured, or the relation of the person injured and the one whose negligence contributed to the injury must have been such that the latter was bound to care for and protect the former." 29 Cyc. 542. Numerous authorities are cited in the notes as supporting the proposition announced. The case of Abbitt v. Railway Co., 150 Ind. 498, 50 N.E. 729, Is referred to and discussed in the opinion of the majority. The facts of that case were less favorable for the application of the rule than those here under consideration. It is true, as stated, that two of the five judges dissented, but I think the facts of this case come fully within the principle recognized in the dissenting opinion. In that case the facts showed that Abbitt and another employé, by the name of Lichstein, were together engaged in inspecting cars. At the time of the injury Abbitt was under a car, and Lichstein was standing on the outside near the end, holding a light for Abbitt. While in that position, Abbitt was injured as the result of a collision with another train of cars, caused, it was claimed, by the negligence of the railway employés operating the train. The question about which the judges divided was whether or not the negligence of Lichstein in failing to give notice of the approach of the train should be imputed to Abbitt. The majority of the court held that it should because the two were engaged in a joint enterprise. The minority dissented upon the ground that the facts did not justify the application of the general rule which imputes to one the negligence of another. The dissenting opinion does not go to the extent of repudiating as a whole the doctrine of imputed negligence in this character of cases, but states the true rule in this language: "It is the duty of each person to take due care, but neither person, unless the relation of agency exists, is responsible for the want of care on the part of another." There was no evidence that there was any agreement between Abbitt and Lichstein that one should keep watch while the other was under a car, or that the injured man in any manner depended upon Lichstein to keep a lookout for him. In that important respect the case differs from this.

The case of Lammey v. Center Coal Mining Co., 144 Iowa 640, 123 N.W. 356, was a suit to recover damages for the death of an employé caused by the fall of slate in a mine on account of insufficient props. Lammey's son was at the time working with him as his partner, and one of the issues involved depended upon the conduct of the son in taking proper precautions for their safety. The court said: "The failure of the son to get mine props, or to use those which were at his command, should be imputed to the father, and not to the defendant. It was, as the Supreme Court of Ohio said, an error of judgment for which the defendant is not responsible, and this negligence is to be imputed to the father." In the case of N.Y. C. St. L. R. R. Co. v. Kistler, 66 Ohio St. 326,64 N.E. 130, suit was brought by a daughter to recover damages for the death of her father due to a collision with a railway train at a public crossing. The facts show that the father was driving a buggy drawn by two horses, that he was very deaf, and it was his custom to carry one of his children along to hear for him. The curtains of the buggy were down, but loose at the bottom. While on the railway crossing they were struck by a train, and the father was killed. In discussing the question of imputing negligence the court uses this language: "While it is true that the doctrine of imputed negligence does not prevail in this state, that doctrine was not applicable to the facts as claimed to be by the defendants in this case, and as the evidence tended to prove. The father, being nearly deaf, took the daughter along to hear for him, and as they came to the west side of the piece of woods he told her to look and listen for trains, and she did so by raising the rear curtain and looking in the direction of the railroad. If it be true that she was to do the listening and also to assist in the looking while he was doing the driving, they were engaged in a joint enterprise, and each would in such case be chargeable with the negligence of the other. It has often been held that the negligence of the servant will be imputable to the master because he is the superior. * * On principle and sound reason the rule should be applied to those who take an active part in a joint enterprise." This statement of the rule from the highest court of a state in which the doctrine of imputed negligence is repudiated is, I think, broad enough to include within its application the facts involved in the case now before us. Mitchell was to go into a position where he could not see, and probably could not hear, the approach of a car coming down from the elevator. Relying upon a pre-existing agreement and understanding with Jones to keep watch and warn him, he made the venture. Here Jones was to do the looking and listening while Mitchell did the work under the car. If in the case last referred to the negligence of the daughter was imputable to the father, I see no escape from the conclusion that in this case the negligence of Jones would be imputable to Mitchell.

The holding of our Supreme Court in this state has been referred to and quoted in the majority opinion, and need not be repeated. Johnson v. G., C. S. F. Ry. Co., 2 Tex. Civ. App. 139, 21 S.W. 274, was a suit in which the deceased was killed by a hand car which ran over him at a road crossing. The deceased was blind and was sitting in the rear end of a wagon which was being driven by his father. The two were going after water, and had some stock carried along to be watered. The facts showed that the father saw the hand car, but drove on across the track. A horse which the deceased was leading became frightened, and pulled back, causing the deceased to fall in front of the hand car. Upon the issue of contributory negligence the court said: "In deciding whether or not the deceased was guilty of contributory negligence in being caught upon the track of appellee, several important questions are presented. In the first place, is negligence on the part of the driver of the wagon to be charged to him? If the jury should find that the deceased and his father were engaged in a joint undertaking, it is settled in this state that each would be responsible for the negligence of the other. Railway Co. v. Kutac, 72 Tex. 643, 11 S.W. 127. And, without undertaking to review the numerous cases in this country discussing the noted English case of Thorogood v. Bryan, we think it is fairly deducible from the authorities that, if deceased was blind, so as to be unable to take care of himself, and of his own volition confided himself to the care of his father, the negligence of such custodian should be imputed to him. In such case he would be his agent." Cin. St. Ry. Co. v. Wright, 54 Ohio St. 181,43 N.E. 688, 32 L.R.A. 340, is another Ohio case, and in it the Supreme Court of that state quotes with approval the following language of Justice Field in the case of Little v. Hackett, before referred to: "That one cannot recover damages for an injury to which he has directly contributed is a rule of established law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties, which if performed, would have prevented it. If his fault, whether of omission, or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong. It should seem that the converse of this doctrine should be accepted as sound — that when one has been injured by the wrongful act of another, to which he has in no respect contributed, he should be entitled to compensation in damages from the wrongdoer. And such is the generally received doctrine, unless a contributory cause of the injury has been the negligence or fault of some person toward whom he sustained the relation of superior or master, in which case the negligence is imputed to him, though he may not have personally participated in or had knowledge of it" The Ohio court then continues: "This, we think, places the doctrine of contributory negligence upon a sound foundation. In order that it shall operate to defeat a recovery, it should be some act or omission of the party himself, or some one toward whom he stood in the relation of master, or superior."

I do not understand that it is necessary, in order for one to be the agent or servant of the injured party, within the meaning of the rule above announced, that there should be a contract creating the relation of principal and agent, or master and servant; but that it is sufficient if by some voluntary act the injured party adopts the other, even temporarily, as his representative, or substitute, for the performance of the duty, or of exercising the vigilance which prudence demanded of him under the circumstances. The imputation of negligence is made, not because the master, or principal, might have compelled the performance of the service or precaution exacted, but because he had delegated that performance to another. There is much in the evidence to justify the conclusion that Mitchell and Jones were joint enterprisers at the time of the accident. Upon that issue Mitchell said: "While I was screwing the nut, Jones was out on the other side of the car. Jones had put the bolt through from the car, and then went out on the other side, and I supposed that he was over there watching out for me. * * * Where two men are working together in putting a draft bolt in, one goes inside and drives the bolt down and the man on the outside puts the nuts on and screws them up. * * * It is usual that, where one man is under a car and his partner is on the outside, the partner is supposed to look out for the man while he is under the car." If, in determining Mitchell's prudence in venturing under the car at the time and under the circumstances then surrounding him, he is to be credited with the presence and promised vigilance of his partner Jones in keeping a watch for cars coming down from the elevator, why should he not be charged with his partner's failure in respect to the duty assumed by him? Upon what principle of justice or rule of law can Mitchell claim the benefit of the one and escape the consequences of the other? The rule making one responsible for the negligence of another into whose keeping he has voluntarily placed himself or his property in my judgment completely covers the facts of this case. The harshness of the doctrine which imputes to one the negligence of a third person is doubtless the reason why courts are disposed to refuse its enforcement, except in that character of cases to which it is now limited. The rule by which the contributory negligence of the injured party alone defeats recovery often necessitates the rendition of harsh judgments. But this rule has been so long established, and is so universally recognized, that no court should feel at liberty to now ignore it without legislative authority. I think the same may be said with reference to the doctrine of imputed negligence within the limits discussed by the cases to which I have referred. The doctrine of respondeat superior rests entirely upon the justice of imputing to the principal or master the culpable negligence of the agent or servant. It is only by imputing to the grain company in this instance the negligent conduct of its servants in causing this particular injury to Mitchell that any liability can be found in his favor.

It may be conceded that the testimony was not sufficient to require a peremptory instruction in favor of the appellant upon the ground that the negligence on the part of both Mitchell and Jones was a concurring cause of the injury; still I think the judgment should be reversed on account of the affirmative error contained in that portion of the main charge of the court which has been previously quoted. In the first portion of that charge, the court intimated to the jury that they might take into consideration the conduct of Jones, as well as that of Mitchell, in passing upon the question of contributory negligence; but in the latter part he excludes any such consideration, and expressly limits the jury to the conduct of Mitchell alone.

For the reasons stated, I do not concur in the affirmance of the judgment in this case.