Arizona Eastern Railroad v. Hudson

LYMAN, J. — In an action based upon the state Employers’ Liability Law (Civ. Code 1913,' pars. 3153-3179), Eli Hudson recovered a verdict and judgment against the Arizona Eastern Railroad Company. This appeal from that judgment raises the question as to whether or not there was any evidence that the accident occurred in the course of the work which Hudson was employed to do. For some months prior to the accident he had been working as a section-hand at Queen Creek, twenty-two miles from Mesa, doing what was called track-walking, inspecting sections of the railway track by passing over some portion of it each day. The foreman of the section, Coon, on the day of the accident just before noon, directed Hudson to place a small motor-car upon the railway tracks and go with him to Mesa. Coon claimed to have had two errands in Mesa — one to visit the dentist and have his teeth fixed, and the other to get two guard-rail bolts from the shops of the Arizona Eastern at Mesa, to be used in track repair. On the way back from Mesa late in the afternoon, the motor-car on which Coon and Hudson were riding jumped the track from some cause unexplained, causing the injuries to Hudson for which he claims compensation in this action. It is essential to plaintiff’s right to recover to show that the accident happened while he was doing the work which he was hired to do. He is not aided by any presumptions. Hudson testifies that he was hired to do track-walking. Coon, who had been discharged from the service of the appellant, testified that “Hudson was supposed to do out in the section anything’ I told him to do.” From that it appears that his duties were confined to the Queen Creek [121] section. Coon further testified that Hudson’s work was “to go over the track and look up broken rails, and drive down spikes and tighten bolts, and look out for switches and switch lights, and anything he sees dangerous he is supposed to communicate to me.” 'All these duties were exercised as indicated by this witness within the limits of the section where he worked. A rule of the appellant regulating the work of the section-gang was as follows: “Foremen must remain with their men and pei'sonally superintend and engage in the work of the gang, and must never absent themselves from duty without consent from their superior officer.” Coon further testified that to leave the section without permission was a violation of that rule. The import of this rule is clear, and the evidence is undisputed that the scope of the duties of both the foreman and all the members of the section-gang, in the absence of express direction, was restricted to the limits of the section on which they were employed to work. This accident occurred 20 miles from the Queen Creek section, at a point where neither Hudson nor the foreman had any right to be at that time, beyond the limits of their section, and doing something outside the scope of their duty. Employers have the right to define the duties and limit the scope of the work which the men are to do in their employment. The employer’s liability is restricted within such limitation, and, if the employee goes outside of those restrictions, and does something else which he is not employed to do, even though it might be ostensibly a service to the employer, he is not entitled to recover for injuries due to such voluntary act. The employers’ liability law affords no protection to the employee while he is doing the thing which he,is forbidden to do. Calumet Mining Co. v. Chambers, 20 Ariz. 54, 176 Pac. 839; Arizona Eastern Railroad Co. v. Matthews, 20 Ariz. [122] 282, 7 A. L. R. 1149, 180 Pac. 159; Modoc County v. Industrial Acc. Com., 32 Cal. App. 548, 163 Pac. 685; Sherer & Co. v. Industrial Acc. Com., 175 Cal. 615, 166 Pac. 318. Hudson undertakes, however, to base his claim upon the circumstance that there was need of two small bolts to repair the track, and that it was necessary for himself and foreman to go to Mesa to get these bolts; that they did actually get them, and that they were placed in the track several days later; and that, at any rate, whether it was necessary or not, he was merely obeying the orders of the foreman, without which he would have been discharged. There is no evidence that Hudson did not have actual knowledge of the rule forbidding the section-gang to go outside their section without permission from some higher authority than the foreman; but, whether the express terms of the rule were known to him or not, the conditions under which they were working, and which he had observed during the months of his employment on that section, constituted abundant notice to him that in going to Mesa for these bolts he was performing no service for his employer. He knew that there was telephone connection between Queen Creek and other points along the road of the Arizona Eastern, including Gilbert, Mesa and Phoenix, and directly with the shops and offices of that company, and that trains were running frequently between all those points, by means of which the bolts could have been had within a few hours, and without labor or appreciable expense to anyone. It is significant that, in the several reports made by the foreman of this accident, no mention is made of the bolts. In all those reports Coon stated that they went to Mesa in order to get his teeth fixed by the dentist. In Coon’s report of his talk with Hudson about going to Mesa, he makes no mention of getting bolts. He says in one of his reports, “I feel as [123] though I am to blame for this.” Hudson himself, in his account of what happened, said that he went to Mesa with Coon because Coon had a bad toothache, and wanted it treated. He also said that he knew he was going to Mesa on his own time off the division, and not on company business; but that, if he had not gone, Coon would have fired him. No mention of bolts was made by him as the occasion or the excuse for going to Mesa. It is clear that Hudson went along, not because he believed he was performing a service for his employer, but because he feared the consequence of not following the directions of the boss, however unfair it might be to his employer. He saw the right and honest course to follow, but was tempted by the faithless Coon for his own selfish and private ends to take from his employer both time and resources. Hudson, because he thought it would be to his own advantage to yield to the temptation, went with Coon, and suffered the grievous consequences. Coon in his report honestly says the blame is his. It is evident that the blame is not that of the employer. It is the contention of appellee that whether Coon was authorized or not-to go for the bolts, his mere order was a protection to Hudson. That, however, is not the law, even if Hudson was not informed of snch lack of authority. Adams v. Hines, 114 Wash. 672, 196 Pac. 19. It is apparent that Coon, not only had no authority to take Hudson, but that Hudson himself knew that he had none. The appellant assigns as error two rulings upon the admission of evidence. The plaintiff testified on direct examination over objection that he had a family, and that he was required shortly after the accident to move from the company’s property. This evidence was foreign to every issue of the case. The best that can be said of it is that it served no legitimate purpose, and tended to injure [124] the appellant. Lawyers in their zeal to promote the cause of their clients sometimes persuade themselves that there is a legitimate basis for such testimony. But the trial judge is without such excuse. To admit it is a species of lawlessness. Unless such practice is not only condemned, but made to bear its legitimate fruit, the records will continue to be tainted with such errors. There is no evidence that Hudson was working for the appellant at the time of the accident. On the contrary, it appears that he was not doing the work which he was hired to do, and that the accident did not happen in the course of such employment, but was due to conditions entirely independent of such employment, and not contemplated by it. The judgment is reversed, with directions that the action be dismissed. BOSS, J., concurs.