Baker v. Bell

COBBS, J. C. H. Bell, a resident citizen of Webb county, Tex., filed this suit in the district court of Webb county, against Jas. A. Baker, receiver of the International & Great Northern Railway Company, and Wm. G. McAdoo, Director General of Railroads, for personal injuries flceived while in the employ of the said Jas. A. Baker, receiver, and Wm. G. McAdoo, Director General of Railroads, on March 30, 1918. The plaintiff on this date was employed as a switchman, and at the time' the injury occurred was engaged in switching in the yards at Laredo, Webb county, Tex. The plaintiff was a member of a switch crew that was working under the orders and directions of one Johnson, who was acting as the foreman of the crew. While so engaged in working, it became the duty of this switch crew to go upon a certain track, located in the yards at Laredo, and to couple up to and bring out two empty cars that were located on this track. The particular duty of making this coupling fell to the plaintiff. Two Unsuccessful attempts were made to effect the coupling, and the plaintiff went; in at the opening between the two cars that were to be coupled up and the cars and engine to which they were to be coupled, and while he was between these cars, working with the coupling on one of the cars to be coupled up, the engine and cars came back, striking the two cars, and plaintiff’s arm was caught between the cross knuckle of the coupling of the foremost of the two cars and the coupling of the car furthest away from the engine, crushing and mashing plaintiff’s right arm, so that it was necessary to amputate this arm at the elbow. ' One of the alleged grounds of negligence was, neither one of the couplings of the cars to be coupled on the ends where the couplings were to be made would couple automatically by impact, but necessitated a man to go between the cars to make the coupling, and the cars were not properly equipped with appliances to automatically couple by impact, thereby violating the law, and that was also negligence on the part of appellant. Defendants answered with the usual answer by exceptions, and that appellee’s injuries resulted from his own negligence and assumed risk. He knew of the dangers and continued in the service; was guilty of negligence, and invited, or was the cause of, the doing of all acts complained of by his fellow servants in undertaking to do work with defective appliances not known to his fellow servants, and he was thereby guilty of negligence in not informing them, so that his acts contributed to and were the proximate cause of his injury. James A. Baker, the receiver, filed a motion to be dismissed from the suit bjr virtue of the fact that the International & Great Northern Railway' Company, of which he was receiver, was at the time of the alleged accident in the hands of and under the control of-the Director General of Railroads of the United States by virtue of an order promulgated by the Director General, under and by virtue of the act of Congress generally designated as the “Federal Control Aqt.” U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%p. The motion was overruled, and the case tried before a jury, resulting in a verdict and judgment in favor of appellee and against James A. Baker, receiver of the railway company, and Wm. G. McAdoo, Director General of Railroads, and his successor, Walker D. Hines, as Director General of Railroads, jointly and severally in the sum of $25,000, with 6 per cent, interest per. annum from April 6, 1919. [1] The first assignment and the six propositions thereunder challenge as error, in different forms, the action of the court in not sustaining the motion and dismissing the receiver from this case, and in permitting a judgment to be entered against him as such.' From the date of the proclamation of the President, which became effective on December 28, 1917, the government, through the [247] Director General appointed by the President to operate the railroads, has been in exclusive possession and control thereof, and was operating the International & Great Northern Railway Company on the 30th day of March, 1918, the date of the alleged injury. The railway, the carrier, is not before this court by any process of service or otherwise, unless James A. Baker, the receiver thereof, may within the meaning of the “Federal Control Act” be designated as carrier. The railway company then exercised no authority whatever in its control and management, which was by former orders and decrees of the federal court passed to said receiver, James A. Baker, and was in the custody of the court and operated under its direction through its receiver. So it will be observed that neither the railroad nor its receiver occupied with the appellee at the time of the injury the relation of master and servant, and it will be observed the maxim respondeat superior has no place here. It was not the negligence of the railway or of its receiver at all, for surely it cannot be said they are to be held liable for acts of the government in operating the road independently of them. Under the provisions of the law the Director General has the very broadest possible powers conferred on him to manage and operate railroads. He may sue or be sued, or make himself party to any suit, direct and prescribe modes of procedure as to how he may be sued. This is made very clear by the acts of Congress, and especially by General Order No. 50, dated October 28, 1918. The act of March 21, 1918, provides, too, “that carriers while under federal control shall be subject to all laws * * * or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President.” Section 10 (section 3115 %j). General Order No. 50 also provided for the dismissal of the carrier from suits, and to substitute the Director General. The plaintiff in this suit did not dismiss the receiver, but elected to join both in the same suit, and not sue either alone. The decisions are not uniform on the question, some holding in effect that such a motion should be sustained and prosecuted alone against the Director General, and others to the contrary. Certainly there was no coordinate operation or dual authority established by the evidence. Muir v. Railway Co. (D. C.) 247 Fed. 888; Wainwright v. Railway Co. (D. C.) 253 Fed. 459; Cocker v. Railroad Co. (D. C.) 253 Fed. 676; Harnick v. Railroad Co. (D. C.) 254 Fed. 748; Rutherford v. Railroad Co. (D. C.) 254 Fed. 880; Dahn v. Director General et al. (D. C.) 256 Fed. 549; Jensen v. Lehigh Valley Ry. Co. (D. C.) 255 Fed. 795; Rhodes v. Tatum, 206 S. W. 114; Northern Pacific Ry. Co. v. N. D. 250 U. S. 135, 39 Sup. Ct. 502, 63 L. Ed. 897; Brady v. C. & G. W. R. R. Co., 114 Fed. 100-107, 52 C. C. A. 48, 57 L. R. A. 712; Mardis v. Director General (D. C.) 258 Fed. 945; Haubert v. Baltimore & O. R. Co. (D. C.) 259 Fed. 361; El Paso & S. W. Ry. Co. v. Lovick, 210 S. W. 285; Jensen v. Lehigh Ry. Co. (D. C.) 255 Fed. 795; Dantzler Lum. Co. v. T. & P., 119 Miss. 328, 80 South. 770, 4 A. L. R. 1669; Lavalle v. Railway (Minn.) 172 N. W. 918, 4 A. L. R. 1659; McGregor v. Railway (N. D.) 172 N. W. 841, 4 A. L. R. 1635; Gowan v. McAdoo (Minn.) 173 N. W. 440; Railway v. Ryan, 214 S.W. 642; Louisville Ry. v. Steele, 180 Ky. 290, 202 S. W. 878; Franke v. Ry. (Wis.) 173 N. W. 701; Bryant v. Pullman Co., 188 App. Div. 311, 177 N. V. Supp. 488; Johnson v. McAdoo (D. C.) 257 Fed. 757. We cannot close our eyes to the fact that very soon the government may return the railroads to the owners, and at this time it is not regarded as profitable to go into any lengthy or extensive discussion of the situation. But in any case you may look to the government to provide for the payment of all claims incurred under its management. As the alleged injuries were committed after the property was taken from the receiver, and he had nothing whatever to do with its operation, instrumentalities, the service or the employment of the servants, it would be rather strange under such circumstances to call the receiver the master and apply to him the doctrine of respondeat superior. No court has ever questioned, under the acts of Congress, the power of government, during the time of war and the necessity. therefor, to sequester the railroads or any property as a war measure and operate them. Nor, so far as we know, has there been any formidable protest coming from the owners. There was a great international war going on oven the seas, calling for the highest type of patriotism and Americanism — a call to arms and to the rescue and for help to save to the world that liberty, religious and civil, for which our forefathers fought and shed their blood, and there was none to deny the government anything. It took over these roads, through its Director General, by virtue of the acts of Congress and the President’s proclamation, and hence became the master, and those operating the roads were completely displaced of its physical properties, together with all the servants, operatives, etc. The receiver was thus left without the means of defense that he would have had, had he been operating the road himself. He had no right of inspection, of spending money for repairs, or command of the men; no reports from employes as to condition of rolling stock; no corps of attorneys to defend or prosecute suits, or the right to secure the witnesses and obtain necessary information from them. These powers usual to railroads had all been taken away. The relation of master and [248] servant bad passed from the receiver to the Director General. We believe the motion should have been granted, and« we sustain this assignment. [2] The fifth assignment complains that the court erred in not giving the sixth requested special charge: “Did the foreman, Johnson, give a kick-back signal to the man operating the engine, knowing that plaintiff was between said cars and attempting to make the coupling?” It is claimed that such charge embraced' defendant’s theory of the case, and it was error to refuse to charge upon an issue material to the defense, upon which reliance is placed. As a general proposition of law that is true, if the refusal of such charge is a denial of any of the rights of appellant involved in the issue. Now, the charge of the court, submitting issues of negligence and answers of the jury, is as follows: Fourth charge: “Did the foreman, Johnson, give a signal which caused the cars to back up while O. H. Bell was between the cars working with the couplers? Answer: Tes.” Fifth charge: “Whs it negligence on the part of thé foreman, Johnson, 'to give a signal to back up, if he did, when Bell was between the cars? Answer: Yes.” Sixth charge: “If you have answered that Foreman Johnson was negligent, then was such negligence, if any, on the part of the foreman, Johnson, a proximate cause of O. H. Bell being injured? Answer: Yes.” The evidence showed that appellee was in the discharge of his duty, and at the time he was attempting to make the coupling the couplers were not provided with couplers which would couple automatically by impact, and appellee was required by his master to go between the cars to make it, which defect was a proximate cause of the injury. [3] Johnson, the foreman, knew that appellee was attempting to make the coupling at time of signal; knew that appellee had given the stop signal and was in a dangerous situation, and Johnson gave the kick-back signal. The evidence, undisputed, showed that Johnson had knowledge of the previous attempts of plaintiff to couple the car; saw him endeavoring to couple; and this charge narrowed down to the very instant of the accident whether Johnson knew he was then attempting to make the coupling. It does not, in submitting the question of actual knowledges,' also submit with it, further, if by .ordinary care he should have known the danger to appellee. The jury might have found just at that moment he did not know he was there, and yet by the evidence could have found that he might have had reason to believe or know from the evidence he was there. Under the facts of this case, and the law,- having sent him to do a perilous thing, it was his duty to 'know. As we understand the law in such cases to be, if by ordinary care the master should have known of the danger, or by the exercise of ordinary care might have known, though actual knowledge was absent, still he would be guilty of negligence if the situation was such as he might have known the danger to him by ordinary care. H. & T. C. v. Coleman, 166 S. W. 688; Railway v. Freles, 166 S. W. 91. There was knowledge enough in the possession of Johnson, as by him admitted, of the presence of appellee at or just before the injury and of what he was attempting to do, for the jury to find that he was negligent in giving the signal before he ascertained that appellee was in a safe place. It would not do to single out and hold and say that, because Johnson did not know that appellee at the very instant was in the act of coupling the car that had a defective coupler, it would exonerate him from negligence. This charge was erroneous in more respects than one, for it would make appellee’s right to recover dependent upon the fact at the very instant of time Johnson did not know he was there when it was negligence under the circumstances not to know, thereby exonerating appellant of negligence irrespective of the proximate cause or other causes of negligence found by the jury, such as the negligence of appellant in not having an automatic coupler that would have protected appellee, who did this particular service under the command of the master. Hardin v. Ft. Worth & D. C. Ry. Co., 100 S. W. 995. [4] The sixth and seventh assignments will be considered together which seeks, first, to have the jury ascertain whether after appellee discovered the defects in the coupling he notified Johnson, and whether after his knowledge of the defect was sufficient to put a reasonably prudent person on notice it was dangerous to go in behind said car and attempt to couple. These questions, if answered as defendant desired them answered, would not have justified or supported a judgment for defendant. A finding that appellee did not notify Johnson of the defect in the coupler would not have constituted a finding that Johnson was not guilty of negligence. A finding that' appellee knew of the condition of the coupler, and that this knowledge was sufficient to put a reasonably prudent person on notice that it was dangerous to go in between the cars, would not have constituted a finding that appellee was guilty of contributory negligence. The issue whether appellee was guilty of contributory negligence, was properly submitted in special issue No. 8. It would not have served any useful purpose to submit either of the issues the refusal of which is complained of. Assignments 6 and 7 are overruled. The fourth assignment complains that the verdict of the jury, awarding to appellee $25,000 for the loss of an arm, is excessive. [249] In view of the age of appellee, we believe, for the loss of an arm, that sum of money to be excessive. Aside from the error in refusing to dismiss the case as against Jas. A. Baker, receiver, and the fact that the verdict is excessive, we find no error in the record. The judgment is reversed in so far as it awards a recovery against said Baker, and judgment rendered, dismissing the case as to him. The judgment will be refórmed so as to award a recovery against the Director General of Railroads for the sum of $15,000, if a remittitur in the sum of $10,000 is filed within 15 days; otherwise the judgment will be reversed in so far as it relates to said Director General, and the cause remanded for a new trial as against him. Footnotes [1] ®=¿Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] i&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes