Davis, Adm'r v. A.C.L.R. Co.

[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.]

Attached to and parallel with the boom, was a small iron ladder, the lower end of which was far enough up on the boom to clear the leg of the "A-frame" when the boom, in its circular, horizontal movement, became arrested by contact with the "A-frame," put there for that purpose; the ladder, however, having cleared the leg of the "A-frame," came within four inches of the wooden post which supported the corner of the roof of the shovel house. Attached to the solid iron base, to which the leg of the "A-frame" was attached, at the corner of the shovel house, there was an iron brace, called the "jack arm." It was intended, with its companion on the other side of the shovel house, to steady the entire structure; its lower end was anchored firmly in the ground, and its upper end passed through an iron eye attached to the base of the "A-frame," and terminated in a threaded point with a nut upon it. The top of the iron frame through which the "jack arm" brace extended, and to which it was attached, was about a foot above the floor of the shovel house, and about 18 inches above the running board along the side of the shovel house. It afforded space for only one foot of a man standing upon it. It is obvious that a man, standing on the upper end of the "jack arm," would inevitably be caught and crushed between the corner post of the shovel house and the iron ladder attached to the boom, if he did not move from that position as the boom swung around and was arrested by the "A-frame." It is also obvious that a man standing on the running board, alongside of the shovel house, which terminated at the corner post, could not possibly have been struck by either the boom or the ladder attached to the boom.

It appears, therefore, absolutely certain that the deceased was standing on the iron frame, the upper end of the "jack arm," and was crushed between the corner post of the shovel house and the ladder attached to the boom. The evidence cause of being thus caught was the failure of the deceased to appreciate the fact that, while the "A-frame" protected him fromthe boom, it did not protect him from the ladder which wasattached to the side of the boom. It will be observed that there was an iron ladder upon each side of the boom, the lower part of which had to clear the "A-frame," or it would be crushed as the boom swung around against that frame.

This is a most remarkable suit in several aspects:

Although the deceased was engaged in a duty which unquestionably devolved upon the construction company, under its contract with the railroad company, the process of loading the cars, no complaint is entered against the construction company. It may be that, if the construction company knowingly accepted the service of the deceased in "spotting" the cars, it would have owed to him the duty of exercising ordinary care in providing for him a reasonably safe place in which to perform the accepted service. If any one owed the deceased that duty, and if any one breached that duty, it was the construction company, and not the railroad company. It may be, too, under the circumstances, that the construction company owed to the deceased the duty of operating the machine with due care. Jackson v. Southern R. Co., 73 S.C. 557,54 S.E., 231.

No negligence in the operation of the machine is alleged; no defect is alleged to have existed in any part of it; nothing appears but the bare fact that the deceased, standing upon a part of the machine, not intended for that purpose, was crushed by the movement of the boom, in the perfectly orderly manipulation of the steam shovel, so far as the evidence shows. The fault of that calamity is laid at the door of the railroad company, which had absolutely nothing to do with the operation of the steam shovel, upon the ground that at the time the deceased was working for the railroad company, which owed him the duty of preventing him from assuming the position in which he lost his life.

I think that, if the action had been against the construction company, instead of against the railroad company, under the evidence adduced, it would have been impossible for the plaintiff to have escaped the direction of a verdict in favor of the construction company; for there is no evidence tending to show that the deceased was directed, or even expected, to assume the position which he did assume, no evidence of a defect in any part of the machine, and no evidence of its negligent operation.

The plaintiff seems purposely to have avoided any allegation as to the negligent operation of the machine, or as to any defect in it, lest he might shift the responsibility from the railroad company, which he sued, to the construction company, which he had not sued.

The action being against the railroad company, and not against the construction company, the plaintiff was under the greater burden. It was incumbent upon him to offer some evidence tending to establish the fact, in the first instance, that as a servant of the railroad company the deceased was, at the time of his injury, engaged in a service for his employer, within the course of his employment; and, assuming that there was some evidence tending to establish that fact, that the evidence further tended to show that the railroad company had breached its duty of exercising ordinary care to provide for the deceased a reasonably safe place in which to perform the required service.

It is manifest that, if the deceased was not at the time of his injury attempting to perform a service required of him by the railroad company, the case for the plaintiff falls; and it is equally manifest, assuming that to be a fact, that, if there was no evidence tending to establish a breach of duty upon the part of the railroad company to exercise ordinary care to provide him with a reasonably safe place within which to perform the service required, the case for the plaintiff falls.

The appeal turns upon a decision of one or both of the questions thus presented.

I. Was the deceased, at the time of his injury, engaged in a service required of him by the railroad company?

There are two considerations that I think lead inevitably to a negative answer to this question. The deceased was employed by the railroad company as a flagman, one of the crew charged, not with the loading or unloading the train, but with operating it back and forth from the point of loading; his duty as a flagman was to protect the rear of the train, which was upon the main line, from collisions with other trains, while it was being loaded at the gravel pit, while it was in motion towards the trestle to be filled in, while the cars were being unloaded at the trestle, and while the emptied train was being returned to the excavation point. His duties were naturally limited to the portion of the work undertaken by the railroad company, which by the contract with the construction company had nothing to do with either the loading or unloading of the cars. "Spotting" the cars was an incident to the loading; there is not a particle of evidence tending to show that the railroad company undertook to assist the construction company in this act; on the contrary, it appears that the construction company had a man employed for this specific duty, and at no time relied upon any employee of the railroad company, as a duty owed to it by the railroad company, to perform this service.

It is true, that the conductor and the brakeman were accustomed, at times, to engage in the process of "spotting" the cars; but it nowhere appears that they did so in obedience to instructions from the railroad company, or as carrying out what they supposed was required of the railroad company. The conductor testified:

"If Mr. Richards was up there signaling cars, he was in the act of performing a duty which he was not to do under his employment with the Coast Line. His duty was to flag the train, and to protect the train from other trains. It was not a part of his duty to signal those cars for the Williams Bros. Construction Company, to spot those cars. I had never told him to go there and do that work. I never gave him any instructions to spot cars. He volunteered to do that for them. They were not paying him — not that I know of. * * * I had not given permission for Richards to act as spotter. Richards did not ask me if he could spot cars. The Williams people did not ask me to allow members of my train crew to spot cars. There was nothing said about it at all. He simply went ahead and did it, and nothing else was said about it. It was not a part of his duty."

The only evidence in the case, and that comes from the only witness offered by the plaintiff to the immediate facts of the case, as well as from the defendant, is to the effect that the "spotting" by the employees of the railroad company was sporadic, and entirely voluntary, without authority of the defendant, and without the direction of any one connected with it, or a request by the construction company. As well might it be held that, if the locomotive engineer had exchanged places with the engineer of the steam shovel, the railroad company would have been under obligation to provide for him a safe place in the steam shovel, and the proper operation of it.

There certainly is no evidence tending to show that either the conductor or the brakeman attempted to spot cars from the position occupied by Richards when he received his hurt. The conductor testified:

"I sometimes spotted cars myself. I did that just so. That was not a part of my duty. It was no part of my duty to spot those cars. I did it voluntarily. I did it simply to help out. I would stand in different places when I spotted cars. I stood on the running board; I stood on the opposite side of the train. I never stood on this jack arm. It was too dangerous. I never stood there. I stood also on the dump cars. But I never stood where Mr. Richards was standing when he was killed. I have never seen anybody else standing on the jack arm to spot cars, or for anything else. Richards could have spotted cars from across the track, or from other places. This jack arm was a dangerous place."

The brakeman was asked, referring to a position on top of the "jack arm": "Did you ever stand there? A. No, sir. Q. Why not? A. Well, I considered back on the running board safer."

In Thomp. Neg., § 4677, it is said:

"An employee who undertakes without the order or request of his employer, or the representative of the employer, or contrary to his orders, or in compliance with the orders or requests of another employee, who has no authority from the employer to give such orders or to make such a request, to perform work outside of the scope of his employment or upon dangerous premises, where the terms of his employment do not require him to do or be * * * is deemed to assume the risk attendant upon his voluntary undertaking, and cannot recover for injuries occasioned by any defect in the premises, machinery or tools to which he thus voluntarily exposes himself. The reason of the rule is obvious. The master undertakes to exercise reasonable care to the end of keeping his premises, his machinery, his tools and his appliances in a reasonable condition of safety for the protection of the servant employed in a stated service and so long as he continues in that service. But when he places himself outside of the line of his duty, the relation of master and servant is deemed to be temporarily suspended. His position is then in all things that of a trespasser or bare licensee. The master owes him no duty to anticipate his deviation from his duty and the possible danger which may arise to him therefrom, and to provide against it. He takes things as he finds them and suffers all consequences of his own error and cannot make his master liable therefor. The law will not on obvious grounds of justice, compel the master to pay damages which the servant has brought on himself by undertaking to do something which the master did not employ him to do, but will ascribe his calamity to his own unnecessary and gratuitous act."

"In all jurisdictions * * * it would probably be held, as it has been held in Massachusetts, that the servant is debarred from recovery, as a matter of law, where he was injured while engaged in work outside his ordinary duty, which was undertaken at the suggestion of a fellow workman, and with the mere consent of his immediate superior." 3 Labatt (2d Ed.). § 1300.

The only cases that I have found which hold the master responsible for defects in the tools, appliances, or places of work supplied by third parties are cases in which the master, in discharging the obligations imposed upon him or for his own purpose and convenience, adopted the tools, appliances, or places of such third parties and used them as such; a situation far from paralleling the case at bar.

II. Admitting for the sake of argument, what is by no means conceded, that the plaintiff at the time of his injury was an employee of the railroad company, and engaged in a service within the course of his employment, and that his injury was due to his occupying a position on the steam shovel which was not reasonably safe, under the circumstances, it seems clear that the liability of the railroad company for the injury sustained by him, is dependent primarily and essentially upon proof of the fact that the railroad company selected or adopted that particular place for his work. The duty of a master in providing a reasonably safe place for the work of the servant is exactly the same as his duty in providing reasonably appropriate tools and appliances. I do not apprehend that any one would insist upon the liability of the master for an injury resulting from the use of a defective or unsuitable tool or appliance, unless the master had furnished such tool or appliance with which the servant was expected to work.

And so here the plaintiff is reasonably required to show, not only that the place was unsafe and that he was injured in consequence, but also that the railroad company required his services at that particular place. I do not think that there is a particle of evidence tending to establish this essential foundation of the plaintiff's cause of action. On the contrary, the only witness presented by the plaintiff, as to the circumstances attending the unfortunate occurrence, testified that there were at least three other places where the deceased might safely have stood in performing the service of "spotting" the cars. How, then, can it be argued that the railroad company required the servant to work at this particular place?

The brakeman, Sompayrac, was put up as a witness for the plaintiff. His veracity is underwritten by the plaintiff, and he has the commendation of the writer of the leading opinion. Sompayrac had been "spotting" cars while standingupon the running board of the shovel house and gave place to the deceased. If Sompayrac could perform this service from the running board, why could Richard not have done so? And why should not the running board be considered the place provided for the service, instead of the perch on top of the "jack arm"? In addition to the running board, there were other perfectly safe places, where the service might have been performed. I think that there is as much reason to hold that the duty would have been breached if the deceased had climbed up on the circulating boom, and had been injured there, while there were half a dozen safe places which he might have occupied.

The authorities universally hold that the place as to which complaint is made must have been a place provided by the master for the service. It cannot be assumed simply from the fact that a servant was injured at a particular place, which the result shows to have been a place of danger, that that was the place provided by the master for him to work, particularly in view of the positive evidence in the case that there were other places perfectly safe.

In Broadway Coal Min. Co. v. Render (Ky.),119 S.W., 198, it is said: "The duty of the master to furnish a reasonably safe place applies only to the place which the employe isrequired to use for the purpose of performing his duty."

In Harper v. Illinois Cent. R. Co., 131 Ky., 225,115 S.W., 198, it is said: "But the duty of furnishing reasonably safe appliances and reasonably safe places and premises is confined to the appliances and places and premises with which the servant is required to work, or in which his duties requirehim to be."

In Smith v. Trimble, 111 Ky., 861, 64 S.W. 915, the Court said: "And when appellant, without invitation or knowledge of the owner, went into or upon other parts of the premises, not necessary for the performance of his labor, he assumed all the risks of doing so. He was neither required, expected, nor allured to be at the place where he was injured, and consequently appellee was under no duty to him to provide there a place of safety."

In Albert v. McKay Co., 174 Cal., 451, 163 P., 666, the Court said: "The negligence charged in the first count is the failure to comply with the employer's duty to furnish his employe with a reasonably safe place to work. The duty is limited to ``the premises where the employe is required, forthe purposes of his employment, to be.'"

In Harris v. Det, etc., 75 N.J. Law, 861, 70 A., 155, the Court said: "A master's duty in respect to furnishing his servants a safe place in which to work extends to such parts of his premises only as he has prepared for their occupancy while doing his work, and to such other parts as he knows or ought to know they are accustomed to use while doing it."

"The duty of a master to furnish a safe and suitable place for his servants to do their work in extends only to such portions of the premises as he has prepared and designed fortheir occupancy while doing his work, and to such other parts as he knows, or ought to know, they are accustomed to use while doing it." Morrison v. Burgess, etc., Co.,70 N.H. 406, 47 A., 412, 85 Am. St. Rep., 634.

"A master's duty to furnish his servant with a safe place in which to work extends to such parts of his premises onlyas he has prepared for their occupancy while doing their work, and to such parts as he knows, or ought to know, they are accustomed to using while doing it." Triangle LumberCo. v. Acree, 112 Ark. 534, 166 S.W. 958, Ann. Cas., 1916-B, 773.

"A master's duty in respect to furnishing his servant with a safe place in which to work, extends to such parts of his premises only as he has prepared for their occupancy while doing their work, and to such parts as he knows or ought to know they are accustomed to using while doing it." Labatt (1st Ed.), § 1558b.

"The employer is not an insurer of the employee's safety. He is liable for the consequences of his negligence but not of the dangers of the employment." 39 C.J., 260.

It appears, therefore, to me, that the railroad company assumed no obligation whatever to the deceased in the matter of his outside, voluntary service in "spotting" cars, and that, if it had, there is no evidence tending to show a breach of duty in the matter of the place selected by the deceased, unusual, unfitted for the service, and of the greatest peril, as the result unfortunately has shown. The foundation of the plaintiff's claim is that, because Richards selected the spot to stand upon, the railroad company must be assumed also to have selected it and required him to work there.

III. There does not appear to be a doubt but that his Honor committed reversible error in charging the jury, as complained of in the seventh exception. The difference is technical and may not have a very controlling effect upon the ordinary jury, between the correct and the incorrect statement of the master's duty as to places of work. The correct rule is that the master must exercise ordinary care to provide the servant with a reasonably safe place in which to work. To say that it is the duty of the master to provide reasonably safe places is to make that an absolute duty, and not one limited to the exercise of ordinary care. Washington G.R. Co. v. McDade, 135 U.S. 554, 10 S.Ct., 1044,34 L.Ed., 235; Baltimore R. Co. v. Groeger, 266 U.S. 521,45 S.Ct., 169, 69 L.Ed., 419; Smith v. Seaboard Air LineR. Co., 182 N.C. 290, 109 S.E., 22.

Can it be said, assuming that the railroad company was under any obligation with respect to the place selected by thedeceased, that it failed in its duty to exercise ordinary care to provide him with a reasonably safe place, when the servant himself selected the dangerous place, while there were half a dozen perfectly safe places at hand? The Employers' Liability Act has not altered the requirement that, in order to hold the master liable for an injury to his servant resulting from a defective appliance or an unsafe place, negligence on the part of the master must be shown. What possible care could the railroad company in this case have taken to prevent the deceased from occupying the position which he had assumed?

Attention should be called to the statement in the opinion of Mr. Justice Blease that it was not shown that the deceased was on the "jack arm" when he was hurt, and not on the running board, and the testimony of the outsider, Woodham, is invoked to that end. Woodham testified that he saw the deceased on the running board: "The last I saw of him he was standing on this running board. I could not have seen him when the shovel hit him, if I had been looking, as I was standing so that the shovel passed between me and him. * * * He was right in front of me, but I could not see where he was when he was struck, as this boom was between us." The evidence shows that, if he had been on the running board, it was impossible for the boom or the ladder to have struck him. The witness also testified that he was caught between that "arm" and the post, which could not have occurred if he had been on the running board.

ORDER The mandate of the Supreme Court of the United States (276 U.S., ___, 49 S.Ct., 210, 73 L.Ed., ___) having been filed in the above-stated case, reversing the judgment of this Court, and remanding the case thereto:

It is ordered that the above-stated case be remanded to the Court of Common Pleas for Orangeburg County, with direction to enter judgment in favor of the defendants under Rule 27 of this Court.

By order of the Court.