Britton v. Wabash Railway Co.

Sharpe, J. There was a general strike of the employees of the defendant in the summer of 1922. Hugh L. Britton (hereinafter called the plaintiff), a young man 18 years of age and weighing about 135 pounds, sought and obtained employment in its machine shops at Montpelier, Ohio. He ha,d theretofore lived on a farm 9 miles from a railroad station, and had ridden on trains but twice and for short distances. He informed the superintendent who hired him that he had had no experience in such work. His wages were fixed at 70 cents an hour for the first 8 hours of each day and $1.05 per hour for overtime. He began work the next day (July 8th), and worked until the night of August 3d. The shops were on the south side of the railroad, almost directly across from *630 the depot. Fifteen tracks separated them. The defendant had provided a bunk room for its employees to sleep in and cars in which meals were served without charge. These meals were furnished at 6 in the morning, 12 noon, 6 in the evening, and 12 midnight. There was a restaurant near the shops on the same side of the tracks at which plaintiff had got his dinner the first two days he was at work, but the proprietor, by the signs he had put up and in other ways, had indicated his sympathy with the strikers, and plaintiff, as he claims, was told by the superintendent that he must not get his meals there; if he did, he would lose his job. There was another restaurant on the railroad property, near the depot. A viaduct had been constructed by the city over the tracks near the machine shops. This was the usual way to go from the shops to the depot. While crossing this viaduct at one time plaintiff was stopped by the strikers. He reported this to the superintendent, who said— “we should stay off the viaduct and not go across there, and save trouble. Mr. Helm said that if we had occasion to cross those tracks to go right across them,” and “I received instructions from Mr. Helm to remain on railroad grounds.” Guards had been placed there to protect railroad property. The employees in the shops were not satisfied with the meals furnished them by the company, and made complaint about them. Britton testified that he got about one-third or one-half of his meals at the restaurant across the tracks, as did many of the other men, and that they were several times seen while eating by the foreman of the shops, and that the superintendent said “that if we wanted anything from over there at the restaurant to go across the tracks and get it.” Plaintiff worked 23 days for the defendant. It is his claim, based on his earnings, that he worked *631 16 2/7 hours out of every 24 during that time, while defendant’s records showed an average of 14 20/23 hours. During the three' days preceding midnight of August 3d, plaintiff claims he worked on an average 18 hours each day, while defendant’s records showed he worked 16. He also testified that he “frequently worked there as high as 36 hours at a time, without rest or sleep.” It is plaintiff’s, claim that he worked these long hours because requested to do so by the foreman, on account of the scarcity of men, and that he felt he must do so to hold his job. He testified: “When I would go into the roundhouse there at night about 7 o’clock and didn’t have any intention of working, Mr. Moran and Mr. Meyers both have told me if I would go to work my time would go right on from 6 o’clock, when I quit to eat supper. Mr. Moran was general foreman and Mr. Meyers was house foreman, at night. John Harp was master mechanic, and Mr. Helm was superintendent.” The effect of these long hours of work is thus described by him: “These long, continuous hours of service without rest or sleep made me dull and sleepy, and I was tired, and have gone to sleep while I was working. On one occasion I was told to work on a certain engine by either Mr. Meyers or Mr. Moran, and I went to work on an engine and he came along and hollered to me and wanted to know what I was doing. I told him I was fixing it, and he said, ‘You have got the wrong engine and are doing the wrong work on it.’ Then I went to the engine. He roused me up a little, I guess, and I went to the engine and done what I was supposed to do.” On August 3d, plaintiff began work at 6 in the morning and worked continuously until 11:15 at night. He had then completed the job he was at. Work after midnight had been assigned to him by the foreman. In company with a young man of about his *632 age, who was working with him, he started to cross the tracks to get his midnight meal at the restaurant. There was a string of flat cars on one of the side tracks. Plaintiff took hold of the ladder on the side of a car, intending to pass over the bumpers between the cars, when the cars started to move. He thus describes what occurred: “I was at the end of the car on the ladder and did not have any warning of any kind that the train was going to start, and did not hear or see any signals of any kind that it was about to start, and Mr. Beyers was on the car next to me. The cars started west. I knew they were on a side track and the cars got to going at about a speed of ten to twelve miles an hour, and stopped very suddenly, so suddenly that it throwed me loose from the ladder and I fell to the ground, and the wheel ran over my hand and fingers. . When the cars stopped so suddenly they came apart or broke apart.” This action is brought to recover damages for the injury thus sustained under the provisions of the Federal employers’ liability act (35 U. S. Stat. p. 65 [8 U. S. Comp. Stat. § 8657 et seq.']). A verdict and judgment in his favor for $5,000 is here reviewed by defendant by writ of error. It is insisted that there was no sufficient proof that plaintiff was engaged in interstate commerce to justify the submission of that question to the jury. One of plaintiff’s witnesses testified: “I know the Wabash ran through Ohio, Indiana, and Michigan, and locomotives that Hugh and myself and others made repairs on were used for both freight and passenger trains through these different States.” No proof was offered by the defendant as to whether the work in which plaintiff was engaged was inter- or intrastate. In its motion for a directed verdict at the close of plaintiff’s case, and again at the close of the proofs, no claim was made that the proofs did *633 not sufficiently show that plaintiff was engaged in interstate commerce. A somewhat similar question was before this court in Collins v. Railroad Co., 193 Mich. 303. The authorities were there considered and discussed by Mr. Justice Moore. The question was for the jury. It is insisted that no negligence on the part of the defendant was established. While plaintiff made several claims in this respect, the court submitted to the jury but one, and in the following language: “Fifth. There is a claim on the part of the plaintiff that defendant was negligent in overworking him. This is the only claim of negligence that you can consider under the proofs in this case. “Then you are instructed if you find under the evidence in this case that defendant, before the injury,, knowingly permitted plaintiff to work more hours and in such a manner than an ordinarily prudent person would have permitted under similar or like circumstances, or if the defendant, by the exercise of ordinary and reasonable prudence, should have known that plaintiff was working more hours and in such a manner than an ordinary, reasonable, prudent person would have permitted, and as a result of said work plaintiff became, at the time of the injury, worn down in mind and physical strength, rendering him unfit to perform his duties in a reasonably prudent manner and to appreciate the dangers incident to his employment as an ordinarily prudent person would perform and appreciate them, and defendant knew that this overwork would produce lack of ordinary mentality and physical strength in plaintiff, or by the exercise of ordinary and reasonable prudence defendant should have known it, this would be negligence on the part of the defendant, and if this negligence was the proximate cause of plaintiff’s injury, plaintiff can recover, unless this was an assumed risk incident to the employment,” The only employment in which plaintiff had theretofore been engaged was in assisting his father in the work upon the farm. His age and inexperience were *634 known to defendant’s superintendent and foremen. They knew that he and other workmen were crossing these tracks to reach the restaurant and that strings of box cars were on the tracks and that, to reach the opposite side, the men must cross over them. Under the proofs we think the jury might well have found that the men were in the habit of crossing over them, as plaintiff was endeavoring to do at the time he was injured, and that their doing so was known to the superintendent and men under whom they worked. The effect upon the human system of such long, continuous hours of service must be considered a matter of common knowledge. A person who so works is not, at the end of the period, in a normal condition. His bodily strength necessarily becomes much exhausted, and his mental faculties cannot but be dulled and weakened. His condition renders him not only unable to protect himself from danger, but more or less unmindful of his surroundings. He does not see things that he would otherwise observe, nor does he fully appreciate the danger of the things he does see. His conduct must be viewed in the light of his then condition of body and mind. A doctor called by plaintiff testified that— “A boy 17 or 18 years of age, working that many hours without sleep and rest, would not be a normal individual. He would be in a dazed condition.” Had the plaintiff been an adult, there would be much force in defendant’s contention that he knew his condition better than the defendant did, although much reasoning may be indulged in to the contrary. This was the first service, aside from his farm work, which the plaintiff had rendered. He was receiving compensation for work done by him for the first time. The increased pay for overtime doubtless appealed to him. He testified that he was earning about $14 per day. There can be no doubt that he was urged, *635 although not compelled, to work these long hours. What plaintiff was attempting to do in crossing between the cars, if not done with the approval, was certainly with the tacit acquiescence of those under whom he was working. After due consideration, we are impressed that the instruction above quoted was justified by the proofs. The question is a novel one, and there appears to be but little authority bearing upon it. In Great Northern R. Co. v. Couture, 14 Quebec K. B. 316 (7 Ann. Cas. 190), it was held (we quote from the syllabus): “A master who keeps his servant continuously at work for an undue number of hours is liable in damages for an injury which the servant sustains, in the ordinary discharge of his duty, in consequence of his inability, from fatigue and exhaustion, to use the requisite skill and care.” In the opinion the age of the person injured is not stated. He was, however, employed as a brakeman, and it may be inferred that he had, at least, reached the age of the plaintiff in this case at the time of his injury. As to his hours of work, it is said: “The evidence in this respect established that he commenced work at half-past 6 o’clock in the morning and worked until 8 in the evening; that he commenced again at 2 o’clock the following morning and worked again until 7 in the evening, when he went to his supper, but was recalled and set to work again at half-past 9 in the evening, although he complained of feeling tired and ill, and that he was kept at work until half-past 8 in the morning, when the accident happened.” The court said: “It could not be otherwise than that his bodily strength was at that time exhausted and that his mental faculties must have been rendered dull and his power of observation greatly weakened.” *636 And further: “It is true that the plaintiff alleged that the immediate and direct cause of the accident was the use of a defective and dangerous system of coupling, but-he added that the accident happened in the middle of the night, when the victim was exhausted by excess of labor, after having been kept 48 consecutive hours-on duty — that is, that young Couture’s exposure to an accident from defective couplers was aggravated by his condition of exhaustion for which the railway company was responsible.” In Pennsylvania Co. v. McCaffrey, 139 Ind. 430 (38 N. E. 67, 29 L. R. A. 104), a train crew were kept on duty for 19 hours each day without time for rest or food. The conductor and engineer left the train to procure food. The plaintiff, a section hand, was injured while the locomotive was being operated by the fireman alone. It was held that the company was chargeable with notice that the conductor and. engineer— “must, and therefore did, at intervals during the nineteen hours of each day, leave the train to answer nature’s strong and eager desire for food. And so knowing, it will be held to have consented.” It was further held that the operation of the locomotive by the fireman alone was a negligent act, chargeable to defendant, and that the fellow-servant rule did not prevent plaintiff’s right to recover, nor did he assume the risk incident thereto. “It is not reasonable to assert that a man who has-labored continuously for a period of 48 hours without-sleep, or for even a much shorter time, is in his normal condition, or that he, under the circumstances, can properly exercise all of the faculties or senses with which he is endowed. The law of nature is inexorable in its demands. The cravings of hunger and nature’s demand for sleep or rest must have consideration. A human being deprived of sleep for the *637 period which appellee was becomes dull in intellect and apprehension, and necessarily must be more or less unmindful of his surroundings.” Republic Iron & Steel Co. v. Ohler, 161 Ind. 393, 405 (68 N. E. 901). “The testimony tended to show that Reed had mistaken the time, by reason of the fact that his watch had run down, but it likewise tended to show that this was caused by the defendant, through its conductor, in requiring or permitting Reed to operate his engine, after he had been in the discharge of his duties for 42 consecutive hours immediately preceding the collision, without rest, and for about 27 or 28 hours without anything to eat. This was evidence of negligence, and the first ground of the motion was properly overruled.” Reed v. Railway, 75 S. C. 162, 172 (55 S. E. 218): The rule thus stated is approved in McCrary v. Railway, 83 S. C. 103 (65 S. E. 3, 18 Ann. Cas. 840), where Pennsylvania Co. v. McCaffrey, supra, is quoted from at length. “A street car company which-knowingly places in charge of a car a motorman who is incapacitated for such service from overwork and loss of sleep cannot avoid liability for injury to his coservant by his failure to observe a rule of the company, where such failure was due to his condition.” Syllabus, Fort Wayne, etc., Traction Co. v. Crosbie, 169 Ind. 281 (81 N. E. 474, 13 L. R. A. [N. S.] 1214). See, also, Adams v. Railway Co., 73 W. Va. 698 (80 S. E. 1115, 52 L. R. A. [N. S.] 175, 177), hereafter quoted from. It is urged that plaintiff assumed the risk incident to what he was doing at the time of his injury. The reasoning under which the foregoing instruction was approved we think sufficiently answers this claim. A similar claim was made in Adams v. Railway Co., supra. The injured workman in that case was 17 years of age. The court said: “If there was any failure of duty on the part of the •defendant, it was the omission of warning and notice *638 of danger from working at night, after a full day of wakefulness, in which seven or eight hours’ work had been done. In the case of an adult this danger would be regarded as an ordinary one necessarily, for it would have been as well known to the servant as the master. It is a danger within the common knowledge of ordinary men, and there is no ground upon which it can be said an adult servant does not know and appreciate it as fully as the master. But, in the case of an infant servant, ordinary risks are conditional. In other words, they are not ordinary risks, but extraordinary ones, unless it appears that in some way the servant had knowledge of them and appreciated them. It does not appear that the deceased had ever before worked at night on a railroad track, or elsewhere, so as to make it apparent from his experience or observation that the numbing effect of fatigue and loss of sleep would increase the danger of injury. If such experience had been shown, the court could say as matter of law he assumed the risk. Williams v. Belmont Coal & Coke Co., 55 W. Va. 84 (46 S. E. 802). In the absence of such proof, or something else showing knowledge and appreciation of the particular danger, the law imposes upon the master duty to warn and instruct a minor servant as to it.” Counsel insist that the verdict is excessive. We are not inclined to> discuss this question in view of what has been said in recent cases. We find no justification for reducing it or setting it aside. The other errors assigned have received due consideration. In our opinion they are without merit. The judgment is affirmed. McDonald, C. J., and Bird, Moore, and Fellows, JJ., concurred with Sharpe, J.