Grim v. Olympia Light & Power Co.

Hadley, J.

(dissenting) — I dissent from the conclusion reached by the majority in this case-. In view of former decisions of this court upon the subject of fellow servants, I believe the majority opinion tends to create confusion as to what doctrine the court intends to establish in relation to- liability for the acts of employees unde-r some circumstances.

Appellant’s counsel have exhaustively and ably argued the law upon the subject of fellow servants, and have cited and reviewed many authorities. The authorities upon this subject are so hopelessly at variance that it would be as impossible to harmonize them as it would be unprofitable to review them in this opinion. This court early approved the doctrine of Chicago etc. R. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787. It was held in that case that a conductor of a railway train, or one who has the right to command the movements of the train, represents the company while performing those duties, and does not sustain the relation of a fellow servant to other employees of the company on the train. This court applied the doctrine of that case in an opinion written by Burke, C. J., in the early case of Northern. Pac. R. Co. v. O’Brien, 1 Wash. 599, 21 Pac. 32. It is true that decision was rendered in territorial days, and a short time before the organization of the state, hut the court as subsequently organized has repeatedly applied the principles of the Boss case. In the late case of Mullin v. Northern Pac. R. Co., 38 Wash. 550, 80 Pac. 814, the conrt said:

“Appellant cites the leading case of New England R. Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181, where that court enters into' a lengthy review of the doctrine of fellow servants, and overrules the case of Chicago etc. R. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787. This court has previously avowed its determination to abide by the principles announced in the decision of the Boss case, and has refused to follow the doctrines announced in the later case just above cited.”

It will therefore he seen that this court has refused to depart from the principles of the Boss case, notwithstanding the fact that it has been 'overruled by the court that rendered that decision. If the principles of the Boss case are applied to the case at bar, then the motorman who controlled and directed the approaching ear was not a fellow servant with respondent. He was not under* the direction of any conductor, hut had entire charge of the movements of the car, and as fully represented the master as did the conductor in the Boss casa Hnder the rule here discussed, both he and respondent were delegated by appellant to control their respective cars, and each stood as the representative of appellant, controlling and directing an independent agency of appellant’s business, that agency being the management and control of a car for 'the transportation of freight. The cars were as distinct in their character as separate railway trains, unless a different rule should be applied to electric or street railway companies^, which appellant contends should he done.

TJponi this point the case of Chicago City R. Co. v. Leach, 208 Ill. 198, 70 N. E. 222, 100 Am. St. 216, is cited. It was held in that case that gripmen and conductors whose duties are to run their trains in such a manner as not to injure those in charge of trains next preceding or following them, and who have power and opportunity to exert an influence over each other, are fellow servants with other men in the service running such preceding or following trains. The theory of the decision is, that such employees are engaged in the same character of service; that they are brought into such relations with each other as to depend upon each other for their safety, and that they have power to observe the manner in which each discharges his duty, and to influence each other by caution, advice, and example. Three judges refused to concur in the opinion, and dissented. The supposed influence of one employee over another under such circumstances, it seems to m&, is too remote. How can an employee upon one car, who is busy attending to his own duties, anticipate the negligence of those in charge of another in such a degree as to exercise a preventive influence when the negligence occurs? The opportunity to exercise such an influence at such a time, in the nature of things^ would seldom be afforded. The opportunity for that preventive influence which establishes the relation of fellow servant should be such as enables one to exert some such reasonably direct influence as may tend to avoid threatened negligence that may result in injury. Such' was the theory upon which Conine v. Olympia Logging Co., 36 Wash. 345, 78 Pac. 932, was decided. I am unable to distinguish in principle between the relations of Oonine and the engineer in that case and those of respondent and the controller of the approaching car in this case. In the former case we said:

“The situation alleged as we have seen, was such that appellant could not see the engineer, and had not an opportunity to exercise any preventive influence over him, or to guard himself against the act of starting the engine at the time it was done. They were neither in sight, nor within reasonable hearing distance of each other. While the work of each was directed to a common end, yet they were so remote from each other that they had no opportunity for the connective influence by which one fellow servant is required to guard himself against the neglect of another, and it appears that sufficient means for so doing had not been supplied by rer spondent.”

In any event, tbe circumstances of the Illinois case differed from those in the ease at bar. That involved a double track street railway, and there were established rules for operating cars under a regular and continued service, while the cars in the case at bar were operated at irregular and uncertain intervals. But even if the facts were in all respects similar, I am nevertheless unable' to distinguish the present case from the principle applied in the Gonine case. Other decisions are cited by appellant to the point that the employees upon one street car are fellow servants with those upon another. These are based upon the theory that the association of such employees is sufficiently close to enable them to exercise a preventive influence over each other and are from jurisdictions where this doctrine has not been limited to as close association in a common employmlent as has been done in this state. Some Federal decisions are cited. Emphasis is placed upon the authority of the case of Baltimore Trust etc. Co. v. Atlanta Traction Co., 69 Fed. 358, as being exactly in point here. There it was held that the conductors of two electric railway ears on the same road are fellow servants, and that the common employer is not liable for an injury to one resulting from a collision caused by the negligence of the other. The trial judge said in the .opinion

“The question is raised as to whether the two conductors are fellow servants, as applicable to the question of employers’ liability. My opinion is that they are. I think they are such under the general law and under the decisions of the supreme court of the United States. Any other conclusion cannot be reached from the later decisions of the supreme court.”

It will be observed that the learned judge refers to the authority of the later decisions of the supreme court of the United States. The decision in the Ross case had not been actually overruled at that time, but the tendency of the later decisions was such that the Federal trial judge doubtless felt under obligations to hold as he did. In view of the position which this court has taken as to the Boss case, the later Federal decisions are not authority here. Under the decisions of this court, the motorman of the approaching car in the ease at bar was the delegated representative of the master, having control and direction of the car, and the respondent at the time of the accident was not associated with him in such a common employment as enabled him to exercise a preventive control or influence over the motorman, and make him the fellow servant of the latter. If the motorman was negligent, then as the master’s representative, his negligence became that of the master so far as his relation to the respondent was concerned. Whether he was negligent in abandoning the car, in failing to disconnect the power and set the brakes, and whether his acts in the premises proximately caused the collision and injury, were all for the jury. A similar application of principles was made by this court in the following cases: Bateman v. Peninsular R. Co., 20 Wash. 133, 54 Pac. 996; Uren v. Golden Tunnel Min. Co., 24 Wash. 261, 64 Pac. 174; Shannon v. Consolidated etc. Min. Co., 24 Wash. 119, 64 Pac. 169; Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365; Howe v. Northern Pac. R. Co., 30 Wash. 569, 70 Pac. 1100.

The majority opinion holds that respondent assumed the risk of the danger. He did not assume the risk of negligence of appellant through its representative in the matter of improperly controlling and handling the operating mechanism of the other car. He was not required to anticipate negligence in that regard. That danger would arise from such negligence of the master’s representative was not to' him open and obvious, and every reasonable expectation was against it. In that particular appellant was obligated to furnish him a safe place in which to work. Appellant is not relieved from the responsibility because it left these men free to operate the cars when they chose. The railway and cars belonged to appellant, and they were being operated by its authority, in its behalf, and for its profit. It had delegated the motorman to direct and control the movements' of the- approaching car, and respondent did not assume the risk of negligent control of that car.

Upon any ground discussed in the majority opinion, I think the judgment should be affirmed.