Berry v. New York Central & Hudson River Railroad

Sheldon, J. The plaintiff, it is now settled by the verdict, received Ms injuries by reason of the negligence of the members of the sMfting crew in the yard at Rotterdam Junction. These men were employed jointly by the defendant and the Fitchburg Railroad Company; and the first question raised by these exceptions is whether the judge should have ruled in accordance with. the defendant’s request, that the plaintiff and the members of tMs crew were fellow servants, and so that the plaintiff cannot recover for an injury occasioned by their negligence. The operation of this yard and station was provided for by two — 201 — written agreements between the respective predecessors of the "defendant and the Fitchburg Railroad Company. Under these agreements, the operation of the yard and the right to the joint use of the main tracks were to be subordinate to the rules and regulations of the Fitchburg Company; a joint agent and joint employees were to be and were appointed by both companies, and were to be removed at the request of either company. All the employees in the yard were put under the immediate supervision and control of the joint agent, and any employee therein who should be unsatisfactory to either company was to be removed upon its request. Provision was made also for a division of the operating and other expenses of the yard, and it was stipulated that “ Each party shall be liable for the damages resulting from the negligence of its own employees not in joint service while working in said yard, or on property jointly used under this contract, and each party will indemnify the other for any claim which it may be compelled to pay by suit or otherwise, arising out of any such case. Should any such damage result from the negligence of the joint employees in said yard, then the cost thereof shall be considered a part of the joint operation of said yard, and be borne jointly in the same proportion ” as other operating expenses. The plaintiff’s injury was caused by the negligence of joint employees in the yard; he was himself in the sole employment of the Fitchburg Railroad Company, and was not in the joint service of the two companies, unless by reason of the fact that while he was on the premises he was to be, under the agreement between the companies, “ under the immediate supervision and control of the joint agent.” The question accordingly is whether the plaintiff had become, and while in this yard and station was, the servant of the two companies jointly, and so a fellow servant with the employees by whose negligence he was injured. There is no question that the general servant of any employer may be lent or hired, or in any way temporarily transferred by his master to another for some special service, so as to become, as to that service, the servant of such other person; and it is also true that the test by which a court will determine whether this has been done in any particular case ordinarily is whether the servant has become subject to the direction and control of — 202 — the party to whom his services have been temporarily transferred» It is enough to refer to a few of the cases which have affirmed this doctrine. Munsie v. Springfield Breweries Co. 200 Mass. 79. Delory v. Blodgett, 185 Mass. 126. Samuelian v. American Tool Machine Co. 168 Mass. 12. Coughlan v. Cambridge, 166 Mass. 268. Hasty v. Sears, 157 Mass. 123. Standard Oil Co. v. Anderson, 212 U. S. 215. But in all these cases, and indeed in all the cases in which this rule has been applied, so far as we have observed, the servant has himself had notice and knowledge of the change of his employer, and has assented thereto, or else has had full notice and knowledge of the circumstances out of which the changed relation was held to have grown as matter of law, and so, by continuing service under the new conditions, has assented to the legal consequences which resulted therefrom. The exemption of a master from liability to a servant for an injury caused by the negligence of other servants in the same employment, like the liability of the master for those breaches of duty for which he may be held liable to his servants, is now commonly rested on the ground of agreement implied in the contract of service. Heffernan v. Fall River Iron Works Co. 197 Mass. 28. Hasty v. Sears, 157 Mass. 123, 125. Kelly v. Johnson, 128 Mass. 530,531. Johnson v. Boston, 118 Mass. 114, 117. Zeigler v. Danbury Norwalk Railroad, 52 Conn. 543, 555. Dowd v. New York, Ontario Western Railway, 170 N. Y. 459. Young v. New York Central Railroad, 30 Barb. 229, 234. Blackburn, J., in Howells v. Landore Siemens Steel Co. L. R. 10 Q. B. 64. Brett, L. J., in Swainson v. Northeastern Railway, 3 Ex. D. 342. A servant who has made such a contract with one master cannot be held, against his will or without his consent expressed or implied, to have abrogated or suspended his contract and to have made instead a new contract with a third party. Accordingly, Lord Watson said in Johnson v. Lindsay, [1891] App. Cas. 371, 382: “I can well conceive that the general servant of A. might, by working towards a common end along with the servants of B. and submitting himself to the control and orders of B., become pro hae vice B.’s servant, in such a sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.’s proper servants, but to exclude the liability of A. for injury occasioned by his fault, to B.’s own workmen. In — 203 — order to produce that result the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master, for the purposes of the common employment.” This language was quoted with approval and followed by this court in Morgan v. Smith, 159 Mass. 570, in which it was said also that the reasons for the rule of the exemption of a master pro hac vice from liability for the negligence of his other servants “ have no application unless the servant knows that he ceases to be under the control of the master who employs him, and passes under the control of a new master.” The same doctrine has been affirmed in other cases, some of which are cited in Morgan v. Smith, ubi supra. See also Delaware, Lackawanna Western Railroad v. Hardy, 30 Vroom, 35; Missouri, Kansas Texas Railway v. Ferch, 36 S. W. Rep. 487. But in the case at bar it was not claimed that the plaintiff had any knowledge of the contracts between the two companies, or any notice or knowledge that he was under the direction or control of any one acting either for the defendant or for the two companies jointly. His rights are not to be affected by the provisions of agreements between his employer and other parties not brought in any way to his attention. Wagner v. Boston Elevated Railway, 188 Mass. 437. Robertson v. Boston & Albany Railroad, 160 Mass. 191, 193. Zeigler v. Danbury & Norwalk Railroad, 52 Conn. 543, 555. Philadelphia, Wilmington & Baltimore Railroad v. State, 58 Md. 372. It is of course not to be claimed that the employee of a single railroad company can be regarded as a fellow servant with those who are employed by that and another company acting jointly, just as the bookkeeper or stenographer of an individual is not a fellow servant with the employees of a firm of which his master is a member. It may be added that there is a large number of decisions in other jurisdictions in which, under traffic arrangements between different carriers, more or less closely resembling the case at bar, it has been held that the defense of common employment, or the fellow servant doctrine, was not applicable. Some of these have been already referred to. Others are Nary v. New York, Ontario — 204 — * Western Railway, 125 N. Y. 759, affirming S. C. 9 N. Y. Supp. 153; Murphy v. New York Central & Hudson River Railroad, 118 N. Y. 527; Sullivan v. Tioga Railroad, 44 Hun, 304; Hurl v. New York Central & Hudson River Railroad, 73 N. Y. Supp. 1042; Tierney v. Syracuse, Binghampton & New York Railroad, 85 Hun, 146; Sawyer v. Rutland Burlington Railroad, 27 Vt. 370; Catawissa Railroad v. Armstrong, 49 Penn. St. 186; Vannatta v. Central Railroad, 154 Penn. St. 262; Phillips v. Chicago, Milwaukee St. Paul Railway, 64 Wis. 475; Galveston, Harrisburg iS'aw Antonio Railway v. Sweeney, 6 Tex. Civ. App. 173; Texas & Pacific Railway v. Easton, 2 Tex. Civ. App. 378; Bosworth v. Rogers, 82 Fed. Rep. 975; Baker v. Philadelphia & Reading Railway, 149 Fed. Rep. 882; Vose v. Lancashire Yorkshire Railway, 2 H. & N. 728. Accordingly the defendant’s requests for instructions upon this subject were properly refused; and as the defendant’s exceptions were taken only to the refusal of its requests, we need not consider whether the judge went too far in ruling that as matter of law the plaintiff was not a fellow servant with the members of the shifting crew, or whether that question should have been submitted to the jury. Dugan v. Blue Hill Street Railway, 193 Mass. 431. We think it manifest that upon the evidence it was for the jury to say whether the plaintiff, in acting as he did in obedience to the order of his conductor, was himself in the exercise of due care, whether or not he assumed the risk incident to the position which he took between the cars and the engine, and whether the accident was due to negligence of the members of the shifting crew. Taylor v. Boston & Maine Railroad, 188 Mass. 390. Coughlan v. Cambridge, 166 Mass. 268. Murray v. Fitchburg Railroad, 165 Mass. 448. Caron v. Boston & Albany Railroad, 164 Mass. 523. Austin v. Fitchburg Railroad, 172 Mass. 484. Maguire v. Fitchburg Railroad, 146 Mass. 379. Loomis v. Lake Shore & Michigan Southern Railway, 182 N. Y. 380. The question put to Harriman by the defendant was properly excluded upon the offer of proof made. It was not disputed that the plaintiff was a comparative stranger at this yard, and there was no offer to show that any practice or method which had been adopted was known or had been communicated to him. He — 205 — did not complain and was not allowed to recover upon the ground of any danger ordinarily incident to the coupling of the cars and the making up of the train, but merely for the negligence of the defendant’s men in backing down in the way they did. This is made plain by what the judge said to the jury in his charge: “ There is no evidence that it was the practice to give previous notice to the trainmen ... of the approach of cars about to couple on. The plaintiff’s claim is that they ought not to back down there as they did, and that it was negligent for them to do so.” That he did not assume that risk is shown by the cases already referred to. The question put to Benjamin was plainly competent. He exercised some control of the crew of the shifting engine; and negligence on his part as well as theirs was asserted by the plaintiff. There was no motion to strike out any part of what was said in the answer of the witness. Exceptions overruled.