Jackson v. Galveston, Harrisburg & San Antonio Railway Co.

Appellant sued appellee to recover five thousand dollars damages for personal injuries sustained by him while in the employ of appellee. A general demurrer was sustained to the petition, and appellant declining to amend, judgment was rendered for appellee. The petition stated that on the 8th of June, 1895, appellant was engaged with others in repairing appellee's track in Guadalupe County, and was under the direction and control of foreman John Daly; that while so engaged, a freight train approached, and appellant, to secure his safety, assumed a position about six feet from the track; that one Thornton McCormick, a fireman on the locomotive, about the time the train was passing appellant, recklessly, carelessly, negligently and without any excuse jumped from the engine while it was in rapid motion, *Page 687 and jumped against appellant, knocking him down and breaking his leg. It was also alleged that McCormick saw appellant, or could have seen him by the exercise of reasonable care, and that the act of McCormick was committed while engaged in the service he was employed by appellee to perform, and appellee was liable for the injury he inflicted. In the second count of the petition it was alleged that Foreman Daly, knowing that a freight train was soon expected to arrive, sent a flagman to stop it before it reached that part of the track that was being repaired; that the signal was given, but was carelessly disregarded by the engineer, and the train did not stop or lessen its speed until it reached the spot where appellant was standing, but passed him at a high rate of speed; and that "Fireman McCormick had reasonable grounds for believing and did actually believe that said track was not in condition for the train to pass over it, and that it was out of repair, and that some of the rails were out of place and off the track, and actually believed and had reasonable grounds for believing that it would be dangerous for him to remain upon the engine any longer, and that the only way for him to escape the danger he regarded as imminent, was to immediately jump from the train, which he did, just as said train was passing where the plaintiff was standing, and in doing so, jumped upon and against the plaintiff, as stated in the first count of this amended petition, and injured him as therein stated, from which injury he suffered the damages therein stated. That on account of the negligence of the engineer of said train, in his failure to heed the said signal and to stop said train, and on account of the signaling of the same by the said section boss, and the consequent frightening of the said fireman, the plaintiff was injured by the negligence of the defendant, for which he prays judgment. He charges that while he was at work at the time and place aforesaid for the defendant, and under the control of the said Daly, he, said Daly, knowing of the approach of said train, sent forward an employe of the defendant, a flagman, to flag said train and have it stop before it reached the place where said repairs were being made and before it reached the place where plaintiff was standing, and that said flagman did go and flag said train in ample time for it to have stopped before it reached the place where the plaintiff was injured, and the engineer and others, in charge of said train did make reasonable effort to stop said train, but were not able to do so on account of there not being sufficient brakes upon it to stop it with reasonable promptness. That it was a large and long train, composed of nineteen freight cars, and was running upon a down grade, and that there were brakes upon only six of the cars, and that this was not sufficient to the proper management and control of such trains going at the rate of speed at which the said train was moving and at which it generally moved. That the reasonable and customary number of brakes for such a train is one to each car, and that they generally are air brakes, and to insure a reasonable degree of safety to the employes of the defendant and others, there should be upon each car an air brake, which was not upon any of *Page 688 the cars of this train, except six of them. That on account of the negligence of the defendant in failing to furnish and provide said train with the requisite brakes as stated above, the said engineer and the others, brakemen and others in charge of said train, were unable to stop it or to lessen its speed until it had come up to where the plaintiff was standing, and the said fireman, then reasonably apprehending danger to himself on account of his belief that said track was out of repair, so as not to be in condition for the passage of said train over it, in order to escape such supposed danger, jumped from said train against the plaintiff and injured him as aforesaid, and to his damage as aforesaid, for all of which the defendant is liable to him." To place the responsibility for the wrongful acts of a servant upon his master, it must be shown that the wrongful act was so connected with and incident to the service in which the servant was engaged, that it can be said to have been done in the line of duty and in the furtherance of the master's business. The doctrine of respondeat superior must, in order to be reasonably sustained, be based on the doctrine that what a person does through another, he does himself. To invoke the aid of this doctrine the act of the servant must have been one that had the authority of the master, express or implied, for its performance. If the act is one incident to and within the scope of the servant's employment, the law will hold the master responsible for the consequences of it; but it does not follow that every act done by the servant, while performing the service of his master, is chargeable to the master. The act must be within the scope of his employment. Wood, Mast. Serv., secs. 277-280. If, as alleged in the first count of the petition, appellant was injured through the negligence of the fireman in jumping on him, that negligence cannot be imputed to the master, for there is nothing in the pleading that indicates that the act of the fireman was within the scope of his employment. On the other hand, the petition sets at rest any surmises on this subject by stating what were the duties of the fireman on the engine. By no process of reasoning can the deduction be drawn that jumping off the locomotive, while it was moving very rapidly, was incident to the duties of a railway fireman. There was therefore no cause of action stated in the first count of the petition. To fix the liability under the allegations of the second count, they must be such that, if proven, would show the negligence of appellee as alleged, and that such negligence was the proximate cause of the injury. Where the damage directly follows the wrong, and there is no time or place for the operation of another agency, no difficulty, of course, is experienced in arriving at a conclusion as to the proximate cause. But where there are several causes contributing to the injury, the question of locating the proximate cause becomes one of much difficulty. The rule as to proximate cause stated by Addison, and adopted by Cooley, is as follows: "If the wrong and the resulting damage are not known by common experience to be naturally and usually in *Page 689 sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong and the damage are not sufficiently subjoined or concatenated as cause and effect to support an action." Addison on Torts, 6; Cooley on Torts, 73, 74. From this rule it will be seen that it is not absolutely essential that the proximate cause should be the one nearest in point of time to the injury. It is not every intervening cause between the original cause and the injury that will be the proximate cause. There may be intervening causes that are mere incidents to the original cause, which were put in motion by it, and which are but a continuance of it, and which are traceable back to the force that set them in motion. Such intervening causes do not disconnect the primal cause from the disaster, and are not taken into consideration, but disregarded, and the cause that set them in motion is looked to as the proximate cause. "The principle is that, if the injury is produced by the wrongful act during the continuance of its causation, it will be regarded as the proximate cause; but as too remote, though furnishing the occasion, when the injury occurs after the act is completed and terminated, by the intervention of another and independent cause." Railway v. Arnold (Ala.), 2 So. Rep., 337. Had the fireman been hurled from the locomotive, through the negligence of appellee, and had struck appellant and injured him, no question could arise as to such negligence being the proximate cause of the injury. A case was before the Supreme Court of Alabama in which a cow had been negligently struck by a locomotive and thrown from the track, falling against a lady who was passing along the right of way and injuring her, and the court said: "It is insisted that the act of defendant was only the remote cause of the injury. When the cow was thrown by the engine, it struck the ground, bounced and fell against plaintiff. The bounce and fall was the immediate cause, but it was merely incidental, and was not an independent agency, which had no connection with the act of the defendant. The direct cause was put in operation by the force of the engine, which continued until the injury; and injuries directly produced by instrumentalities thus put in operation and continued, are proximate consequences of the primary act, though they may not have been contemplated or foreseen. The relation of cause and effect between the primary cause and the injury is established by the connection and succession of the intervening circumstances. If the cow was thrown from the track by the negligence of defendant, the injury cannot be regarded as a purely accidental occurrence for which no action lies." Railway v. Chapman, 2 So. Rep., 738. The circumstances of the case before us are very peculiar, a parallel to which we have not been able to discover. The nearest approach to it of any case that has been brought to the notice of this court is a recent Pennsylvania case. In that case, a street car company occupied a street in Pittsburg with a double track, on one of which the cars passed in one direction, and on the other track in the opposite direction. *Page 690 Thatcher was in a light wagon on the right hand track, on which the cars moved in the same direction he was going, and seeing a car coming, he moved over to the left hand track. After the car passed he attempted to get back to the right hand track but was prevented by a wagon that was coming from the opposite direction on the left hand track, and was trying to leave that track for the same reason that Thatcher was, — the rapid approach of the car. Thatcher turned to the right and the approaching wagon to the left, and the latter being ahead Thatcher could not get off in time and was struck by the car, and the injuries resulted. It was contended that the driving of the wagon in front of Thatcher was the interposition of an independent responsible cause which produced the result. It was held by the court that the position was not well taken. The court said: "The wagoner was moved by the same impelling motive as the plaintiff. Both sought escape from the same impending danger. He neither acted maliciously nor negligently. Both displayed prudence in acting with the utmost promptness. If the speed of a car was a dangerous and negligent one, the natural consequence was that, on a much traveled street, those in peril would obstruct each other's movements in attempts to escape." Thatcher v. Central Traction Co., 30 Atl. Rep., 1048. So, in the case before us, a danger signal had been disregarded, or the brakes were in such condition that the train could not be stopped; the track was in a dangerous condition; the foreman was giving the danger signal; appellant sought safety for himself by taking a position to one side of the track; the fireman in fear of his life, superinduced by reasonable apprehension, sprang off the locomotive, struck appellant and broke his leg. If the allegations are true, and they are so taken for the purposes of passing on the demurrer, there was no negligence or malice on the part of the fireman, but he was, in jumping, impelled by the same motive that appellant was in leaving the track, in order to procure his own safety. The necessity for this step was produced by the negligence of appellee. His act was not the independent responsible cause of the injury, and could not be said to have disconnected the negligence of appellee from the injury inflicted on appellant. The negligence of appellee placed the fireman in a position where he was not, and could not, by force of the circumstances surrounding him, act freely and independently, but back of him, impelling him with a force that human nature rarely resists, was the desire for self-preservation. Appellee had surrounded him with the circumstances that produced the occasion for the exercise of the act to preserve life. Had the fireman been injured in his attempt to escape danger brought about through the negligence of appellee, he would have been entitled to recover damages, because the necessity for his leaving the engine while under headway, was caused by such negligence. The question of his contribution to the injury could not arise, because his act was not voluntary. It would no more be deemed an independent act on his part than if he had been forcibly hurled from the train. If he *Page 691 had, however, been by physical force thrown from the train and had come in contact with a human being and injured him, the railroad company would be responsible to both for any resulting damages. Why should not the same principle obtain when the man, through reasonable apprehension produced by the negligence of a railroad company, leaves the train and in his passage comes in contact with and injures another person? It is no more the independent voluntary action of the man in the one instance than in the other. The jumping is a continuation of the casualty put in action by the negligence of the railway company, and there is no intervening act of a responsible independent agency that in any manner impeded the operation of the primal cause. One of the contingencies which appellee was charged with foreseeing was, that under such circumstances its employees would leave the locomotive, and that section hands would be standing near where they were repairing the track and would be struck and injured by those jumping. The judgment will be reversed and the cause remanded. DISSENTING OPINION.