Lutz v. Atlantic & Pacific Railroad

Seeds, J. This is an action of trespass on the case, brought by the plaintiffs in error against the defendant corporation, for the statutory damages for the negligent killing of the plaintiff’s (Ella Sykes’) former husband by the defendant. The declaration contains three counts. The first count declares upon the negligence of the fellow servants of the decedent, he being a conductor upon a freight train of the defendant. The second count declares upon the negligent, careless, and improper selection of the decedent’s fellow servants by the defendant, and the retention of said fellow servants in its employ after full knowledge of their incompetency, and alleges that the killing was caused by reason of said incompetency. The third count declares upon the negligent conduct of the defendant in furnishing the decedent with an improper, unsafe, and defective caboose, knowing at the time that it was unsafe and defective, but which the decedent used under protest, and only under and by reason of the promise made by the defendant to the decedent that he should be' provided with a safe one in a very short time; and because of the negligence and carelessness of the decedent’s fellow servants upon another train of the defendant’s, running into and destroying the caboose in which the decedent was, by reason of which he was killed. To the declaration, and each count thereof, the defendant filed a demurrer. The court sustained the demurrer to the first and third counts, and overruled it as to the second; whereupon the defendant answered as to the second count. A jury was called, and after the plaintiff’s evidence was in and they had rested, the court, upon motion of the defendant, instructed it to find for the defendant. The plaintiffs sued out a writ of error, and allege error in sustaining the defendant’s demurrer to the first and third counts, and in instructing the jury to find for the defendant upon the trial under the second count. trespass on case: ter^ornegiigence of feiiowservant. 1. The first count declared upon the negligence of the deceased’s fellow servants, whereby he lost his life. Unless changed by statute, it is now the unquestioned law that damages can naj. ^0 recovereq for injuries sustained by reason of the' negligence of fellow servants. Negligence of such servants of a common employer is part of the risk which public policy requires that an employee take in entering upon a service in which there are fellow servants. Priestly v. Fowler, 3 Mees. & W. 1; Murray v. So. Car Railroad Co., 1 McMul. 385; Farwell v. Boston & W. Railroad Co., 4 Metc. 49; Pierce, R. R. 358; 2 Ror. R. R. 1183; 1 Lawson Rights, Rem. & Pr., section 301; Beach, Contrib. Neg section 102; Randall v. Baltimore & Ohio Railroad, 109 U. S. 478. Beach in his work objects strenuously to the-reasoning upon which this rule of law is based, but admits that it is now universal, unless when changed by statute, as it has been in some jurisdictions. We are content to adopt the rule as the law for this jurisdiction, whatever may be the theoretical objections to it, based upon what may be thought to be purely logical grounds, until such time as the legislature sees fit to change it. But the plaintiffs contend that the rule as above enunciated has been changed. The question for decision then is, has it been changed? Sections 2308-2310 Compiled Laws, New Mexico, provide, in substance, that, when “any person” comes to his or her death by reason of the negligence or carelessness or criminal action of an agent, officer, or other employee of a railroad company, that his or her representative may recover of the company $5,000. The contention is that “any person” in this statute has reference to any one whomsoever who may be killed, and hence includes one who may be a fellow servant. By further reading the statute it will be found that the words “any person or passenger” are used, which would seem, however, to throw doubt upon the real meaning of the words “any person,” rather than to more definitely explain them. This statute is almost verbatim a copy of the Missouri damage statute. In that state it has received a decisive construction after a somewhat lengthy period of uncertainty. In Schultz v. Railroad Co., 36 Mo. 13, it was held that the general meaning of the words “any person” was the meaning which the legislature intended to attach to them, and that therefore, the common law rule of fellow servants taking the risk of each other’s negligence, when not notorious and know to the employer, was abrogated. But this was not satisfactory, and in the case of Connor v. C., R. I. & P. Railroad, 59 Mo. 308, two of the five judges vigorously dissented; Judge Hough in Ms dissent satisfactorily showing, to the writer’s mind, that, whatever may be the sounder and more humane rule, the legislature never intended to change the rule as to the liability for negligence of a fellow servant by that statute, but only to give a cause of action to the representatives of a deceased person where none existed before, and to limit the extent of that liability. Finally, in the case of Proctor v. H. & St. Joe. Railroad Co., 64 Mo. 112, the supreme court of that state took the view of the case so ably expounded by Judge Hough, and it has remained the law of that state ever since. Upon a similar statute the same words have received the same construction in Iowa (Sullivan v. Miss. &. Mo. Railway Co., 11 Iowa, 422); in Maine, (Carle v. B. & Pac. Railway Co., 43 Me. 271); and in Colorado (A., T. & S. F. Railway Co. v. Farrow, 6 Colo. 498). The statute of this territory (sections 2308-2310) was adopted after the final decision in the Connor case in Missouri, and it was urged that it is the law that, when one jurisdiction adopts without change the statute of another jurisdiction, it also adopts the judicial construction placed upon it by that jurisdiction. While this is so, yet we do not think it necessary in this case to rest our decision upon that principle but rather upon the broader principle that there is nothing in the statute itself, nor in the history of its adoption, which goes to show that it was the intention of our legislature to overthrow a rule thoroughly ingrained in the judicial holdings of the courts of the land, and in view of which it must now be held that all contracts for hire to corporations, in the absence of express stipulations, are made. The action of the trial court, in sustaining the demurrer to the first count was correct. injury to railroad structioifto!fiñd for defendant, 2. The second count was predicated upon the assumed fact that the defendant company was negligent in its selection of the fellow servants of the deceased Sykes, or in the keeping of them in its employ after knowledge of their incompetency had been brought home to it, and that it was through such incompetency that the deceased was killed. After the plaintiffs’ evidence was all in, the jury was instructed by the court to find for the defendant, which it did. Of this action the plaintiffs complain. They insist that there was ■something to go to the jury, and that in instructing it to find for the defendant the court usurped the province of the jury, which was error. However, it is now the settled law of the supreme court of the United States, and of this court, that when evidence is of such a character that, should the jury find for one side rather than the other, it would be the duty of the court to set aside such verdict, it will, in the first instance direct a verdict for the party thus entitled to it. Randall v. Baltimore & Ohio Railroad Co., 109 U. S. 478; Candelaria v. A., T. & S. F. Railroad Co., 27 Pac. Rep. (N. M.) 497; Gildersleeve v. Atkinson, Id. 477. We have thoroughly read the evidence produced by the plaintiffs to sustain the allegations of their second count, but we are unable to see where there is anything which tends to support those allegations. The action of the court, therefore, was correct. injury to railroad |”n¿eofef'eíow1 mate cause. 3. The real difficulty in this case grows out of the sustaining the demurrer to the third count. It will be necessary, therefore, in order that a complete understanding of the count may be had, to set out in extenso the material portions of the count. After the allegations of corporation, the place of doing business on the part of the defendant, its employment of the deceased, and its duty to tumish proper, safe, and reliable cars, cabooses, and other machinery, the count continues as follows: “Yet, not regarding its duty .and ' promises, in the premises, the said defendant did not so furnish the said Sykes with all safe, properly constructed, and reliable cars, locomotives, machinery, and tools for the proper conduct of his conducting ' of trains as aforesaid, in this: That after his engagement and entering the employment as aforesaid, and some short time previous to the happening of the event hereinafter mentioned, the said defendant failed to furnish said Sykes with a proper caboose or way car, such as is usually and ordinarily used upon said same railroad, and upon all other like railroads, but instead wrongfully, negligently, and carelessly gave and furnished him, for use upon his said trains, against his consent and over his protest (but which he was induced to take and use, under faithful promises of the defendant, by its agents and their servants, then and there to him made, that he would be furnished with a proper caboose in a very short time), a weakly built, common, unsubstantial box car, without any platforms, bottom beams, springs, bracing, or proper trucks, and without any doors in the ends, or windows in the ends, or cupola or lookout station in the top, through either of which approaching danger might be seen and prevented, as is usually upon cabooses and way cars upon other parts of said line and other like roads. And said box car, used as a caboose or way car as aforesaid, was so flimsily and improperly constructed it would, and did, during its use by said Sykes, aforesaid, easily ¡become derailed and jump the track aforesaid, all’ of which was then and there known to said defendant; but the said George W. Sykes, so relying upon the promises of the defendant so made to him as aforesaid, that it wouldin a very short time furnish him with a good, safe, and proper caboose, did, relying upon said promise, continue in said employment until the thirtieth day of March, A. D. 1888, at which said date, at, to wit, the county of Bernalillo, in the territory of New Mexico, said George W. Sykes was, pursuant to the order of the defendant, proceeding with one of its trains with the aforementioned box car, being used as a way car, with all due and proper care and diligence, eastward in said county, toward said Albuquerque, and when „ he had so proceeded to a point on said railroad, about four miles east of the small station of San Jose, and while still, as aforesaid, exercising all due and proper care and diligence in the premises, the defendant then and there being possessed, as aforesaid, of a certain other locomotive engine and train of cars attached thereto, which said latter loco ■ motive engine and train of cars were then and there under the care and management of divers, then servants of the defendant, who were then and there driving the same upon and along said railroad, near and toward the point aforesaid, also in an easterly direction, and the said defendant then and there, by its servants last aforesaid, so carelessly, improperly, negligently, and unskillfully drove and managed the said locomotive engine and train of cars that, by and through the carelessness, negligence, unskillfulness, andimproper conduct of the defendant, by its said servants in that behalf, and also by and through the negligence, carelessness, default, and improper conduct and wrongful act of the defendant in defaulting, refusing, and neglecting to furnish a proper caboose and way car to Sykes, as was its duty to do, the said locomotive engine then and there ran and struck, with comparative force and violence, upon and against the rear of the train and box car, being used as a caboose as aforesaid, and being conducted with all due and proper care and diligence by the said George W. Sykes, and by reason of the poor and improper construction of the same, broke the same into splinters, and said George W. Sykes was then and there, with great force and violence, struck by said locomotive, and by splinters of said box car being used as aforesaid, and thrown with great violence from out of said car,” from the effects of which he afterward died. To this count the defendant demurred, and assigned several reasons therefor, among them that the said Sykes voluntarily used the said caboose; that it does not appear that there were any latent or hidden defects in or about the way car; that the negligence, if any, was the negligence of Sykes’ fellow servants; and that the count is in many other respects uncertain, informal, and insufficient. The court sustained the demurrer. While this demurrer specifically sets out the grounds of objection, yet it is in substance a general demurrer, and under it any objections to the substance of the count may be urged whether assigned or not. 1 Chit. Pl. 663; Grould, Pl., p. 435, sec. 19. It is elementary that upon demurrer all facts which are well pleaded are admitted to be true. Therefore it must be considered that the facts in this count as plead, which are well plead, are before us with the same effect as though found by a jury. At the argument counsel for both parties rested their contention solely upon the alleged negligence of the company in failing to provide the deceased, Sykes, with a safe and proper caboose, within an reasonable time after having promised him to do so. The position of the plaintiffs was that, as the defendant knew of the unsafe condition of the way car or caboose, and had promised to provide another in its stead, it assumed all risks from dangers to the deceased during a ‘ ‘reasonable time” which he might use it while waiting for the new car; and that such use was not, upon the part of the deceased, contributory negligence. The defendant contends, upon the other hand, that it is shown that the defects, if any, in the caboose, were patent and evident as immediately dangerous, and, therefore, that the rule contended for by the plaintiffs did not apply, but that the use of such car, under the circumstances alleged in the count,notwithstanding the promise of the defendant, was contributory negligence on the part of the deceased, and that his representatives cannot recover. “If the servant complain of the defect to the master, and the latter promises to remedy or repair it, the servant, by remaining on this assurance for a reasonable time in the service, will not be considered to have waived it, and the question of a reasonable time will be for the jury.” 1 Lawson, Rights, Rem. & Pr., sec. 312, and cases cited; Gulf, Colorado & Santa Fe Railway Co. v. Brentford, 23 Am. St. Rep. 317, and annotated note; Hough v. Railway Co., 100 U. S. 213. In this last case the court holds that it is not contributory negligence, as a matter of law, to remain in a dangerous employment for a reasonable time after a .promise' by the employer to remedy the defect complained of, but that it was a question for the jury to say whether it was contributory negligence to so remain. This is unquestionably the general rule of law where an employee gives notice to his employer of defects in the machinery that he-is using, and the employer promises to remedy the defects in. a short time, unless such defects are so evidently dangerous as that it would be reckless and foolish for the employee to use the defective machinery, even under a promise that it should be immediately remedied. The defendant contends in this case that the allegations of this count, admitted by it to be true, show: First, that the deceased used the defective car for a longer period than by any possibility could be considered a reasonable time; and, second, that the defects set out in the count are so evidently dangerous that only a reckless person, one utterly careless of his safety, would have used the caboose without its being, at least, remedied. That, therefore, as a matter of law, he did contribute to his death, and that the action can not be sustained. In the case of District of Columbia v. McElligott, 117 U. S. 621, the court carefully limit the ruling in the Hough case, supra. That was a case wherein McElligott was working in a gravel pit for the defendant. There was an overhanging bank, under which he with others was working, which threatened to break off and fall upon them. It was alleged that the supervisor of the work was notified of this danger, and promised to have it remedied immediately. Under that promise the plaintiff continued to work for but a short time, and while so working was injured. The court, in discussing the question of his contributory negligence, said: “If liability might come upon the district for the negligence of its officers controlling his services, he was under an obligation to exercise due care in protecting himself from personal harm while discharging duties out of which such liability might arise. If he failed to exercise such care, if he exposed himself to dangers that were so threatening or obvious as likely to cause injury at any moment, he would, notwithstanding any promises or assurances of the district supervisor of the character alleged, be guilty of such' contributory negligence as would defeat his claim for injuries so received.” Page 633. If, then, the dangers were as great by reason of the alleged imperfections of the way car as are admitted by this demurrer, it would seem as though the case last cited went very far toward sustaining the defendant’s contention that the deceased, Sykes, contributed by his own negligence to his death; and, if so, then clearly, under the law, his representatives can not recover in this action. But whether they can or not, under this view of the law, yet we think that the action of the trial judge was correct upon another view of this count. The real question presented by this count, and the demurrer thereto, is, what was the proximate cause of the injury to the deceased? Was it the negligence of the fellow servants upon the second train, or was it the negligence of the company in failing, within a reasonable time, to provide the deceased with a 'suitable and proper way car, or was it the combined result of both negligences? If it was the first negligence, then clearly the action can not be sustained, for in the first part of this decision-we have seen that the law is that no recovery can be had for the negligence of a fellow servant. If the proximate cause was the - resultant of the two negligences, and one of those negligences is not actionable, then there is no cause of action upon which the suit can be predicated, for the proof must correspond with the allegation, and there would be no proof of the negligence of the fellow servant allowed. It is admitted by the demurrer that the facts are as alleged, if properly pleaded. But, if the plaintiffs can not recover for the negligence of a fellow servant, then that negligence, as an alleged cause of action, may not be so pleaded, and the demurrer in this case does not admit it as an actionable fact. Therefore, the count is not good, upon the theory that the injury was the result of the joint negligences of the fellow servants of Sykes, and the failure upon the part of the company to furnish a safe caboose. It would seem that the fair interpretation of this count was that it does charge the injury to be the result of the-joint negligence of the fellow servants and the company, and hence that it was not a legal statement of a wrong upon which a suit might be predicated. But, conceding that the negligent action of the fellow servants upon the second train is alleged by the plaintiffs simply as a mere condition of the injury 5 and that they insist that the proximate cause of such injury was the negligence of the company in failing to furnish a proper and suitable way car within a reasonable time as it had promised to do, we have to inquire, was such negligence the proximate cause of the death of Sykes? What is a “proximate cause?” Definitions have been given by text-writers and in adjudicated cases which will aid us materially in answering this question, though, as a matter of fact, each case will have to, in a great measure, depend upon its own particular facts in ariving at what is the proximate cause of an alleged injury. “A ‘proximate cause’ may be defined as that cause which, in natural and continued sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which that result would not have occurred.” 16 Am. &. Eng. Encyclopedia of Law, 416. This is the general rule “where no intervening efficient cause is found between the original wrongful act and the injurious consequence complained of.” Another definition found in the same authority, and more particularly applicable here, is, “in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it was such as might or ought to have been foreseen in the light of the attending circumstances.” This rule is sustained by the highest authority. Milwaukee Railway Co. v. Kellogg, 94 U. S. 469, 475; Hoag v. Lake Shore Railroad Co., 85 Pa. St. 293; 2 Thomp. Neg. 1085, sec. 2; 16 Am. & Eng. Encyclopedia of Law, 436, and cases cited under note 4. It must be remembered in this case that the negligence complained of is the failure upon the part of the company to furnish a proper caboose, which from its construction would not jump the track; that should be strongly built; that should have platforms, bottom beams, springs, bracings, proper trucks, doors, end windows, and cupola. Now, under these definitions, and the law as laid down in the cited cases, the question is, could- this defendant have foreseen, by any ordinary or any extraordinary foresight, that, because of its negligence to furnish such a caboose, another train upon its tracks would negligently run into this caboose, rather than into one properly built and fitted up? If the second train is eliminated from the consideration of the case, was the negligence of the company to furnish a proper caboose in any manner whatever the cause of the death of Sykes? How, then, can that negligence be said to be the proximate' cause of the injury? Supposing that the deceased had been furnished with a proper way car, and that a second train had run into it with comparative force and violence, is there any presumption from the fact that it was a proper way car that an accident would not have happened? Would not the way car have been thrown from the track, and the deceased with it, and would not the result of the force and violence of the collision and of the splinters from the way car, been, in all probability, the same as in this case? If it would, then the proximate cause of the injury was not the negligence in failing to furnish the proper way car, but the collision with the second train. In other words, if you take away this bad caboose, and place a good one in its stead, leaving all the other facts as alleged in the count, you will have the accident and the injury; but, if you take away the negligence of the fellow servants in the second train — it makes no difference whether there is an imperfect caboose or not — there will be no accident, and the negligence in not furnishing a proper caboose would not be the natural or probable cause of the injury, and, under the ruling of the courts, would not be the proximate cause of Sykes’ death. If because of the weakness or lack of support, or of platform, or of bottom beams, the car had broken down, or jumped the track, and the injury had been caused, a far different case would have been presented; or if because of the lack of windows, and without any other alleged negligence, the way car had been run down, and the deceased injured, because he could not see the approaching danger, which he was looking for, the ease would be different; but there is no allegation in this count which can be construed into meaning that Sykes came to his death by reason of the absence of the windows. We are not to be understood as holding that, if there had been proper allegations of the defects in the way car being the primary cause of injury to the deceased — the fact that the force which caused those defects to operate disastrously was brought into action by the negligence of the fellow servants of the deceased in the second train — there would have been no cause of action. If the allegation had been, for instance, that, by reason of the negligence of the defendant in failing to furnish a way car with windows in the end, and with a cupola, the deceased was unable to see approaching danger, for which he was on the lookout, and, therefore, he was injured, he probably would have alleged a good cause of action. It is true that the plaintiffs alleged generally in this count that the way car had no doors or windows in the ends by “which approaching danger might be seen and prevented,” but' that is all. The allegation as to his injuries is that, “by reason of the poor and improper construction of the same (referring to the way car), broke the same into splinters,” and that Sykes was then and there struck by said locomotive, and by the splinters of said box car. This was the cause of his death, and we are unable to see how the failure to furnish a way car with proper end doors and windows, upon these allegations, can by any construction be considered the proximate cause of the death. . The following cases fully sustain, in our judgment, the above holding: Pease, Adm’x, v. Chicago & N. W. Railway Co., 20 N. W. Rep. (Wis.) 908; Fowler v. Chicago & N. W. Railway Co., 21 N. W. Rep. (Wis.) 40; Hayes v. Western Railway Co., 3 Cush. 271; Whittaker v. Delaware Co., 3 N. Y. (Sup.) 576; Memphis Railroad Co. v. Thomas, 51 Miss. 637; Gilman v. Eastern Railroad Co., 10 Allen, 233; King v. Boston, etc., Railroad Co., 9 Cush. (Mass.) 112; Handelun v. B., C. R. & L. Railway Co., 72 Iowa, 709, 32 N. W. Rep. 4; Campbell v. City of Stillwater, 20 N. W. Rep. (Minn.) 320; Hoag v. Railroad Co., 85 Pa. St. 293; Township v. Watson, 9 Atl. Rep. (Pa.) 433. As, then, the decedent, under the facts as plead in this count, met his death by reason of the negligence of the fellow servants on the second train, which was, in our view of the case, the proximate cause, we find no error in the rulings of the court below, and they are, therefore, affirmed.