Railway Co. v. Hammond

Bunn, C. J., i. Reason-rule adopted by master. (after stating the facts). One of the causes of complaint of the appellee is to the .effect that . the appellant company had failed and neglected to establish reasonably sufficient rules and regulations to govern the conduct of its business in respect to the running of trains by the rock quarry, so as to afford reasonable protection to the men there employed, and while on the hand-car, as deceased was when killed. This is a charge of direct negligence on the part of the company, and of itself involves no question of agency or relation or degree of service, for it is not to be thought of that rules and regulations, as here understood, are other than immediate directions of the master. It is conceded everywhere that, in order to insure, as far as practicable, order and system in a dangerous and complicated business like that of railroading, it is the duty of the company to establish rules and regulations reasonably conducive to that end, not alone because its business may prosper the more, in that its conduct is thus made the more orderly and systematic, as it must necessarily do, but because another, and none the less important, effect of such reasonable rules and regulations must necessarily be to add to the safety and security of the.company’s employees engaged in the labor which the business demands. Further than this, as was said by this court in the case of Railway Company v. Triplett, 54 Ark. 299-300 : “This seems to be the general rule of law, when the circumstances are such that a reasonably prudent person might rely upon rules and regulations to afford protection. But if the master sees proper to rely upon such methods of protection to his servants, and the occasion demands it, he should also adopt such measures as may be reasonably necessary to secure the observance of such rules.” In many jurisdictions the duty of seeing that the rules and regulations are enforced is expressed in stronger terms, but this court has never gone further than is indicated in the above extract. It will be seen that the objection to the insufficiency of the rules of the company was confined to an allegation that, if the rules had been such as to require of the engineer of the freight train to sound his whistle on his approach to the quarry, it would have been sufficient, in this, that the men on the hand-car, a half mile or three-fourths of a mile away, could have or would have heard it, and, being at such a distance from the approaching train, could easily have got off the track in time to avoid all danger of collision, and that thus the life of the deceased might or would have been saved. On the other hand, it is in evidence that the rock quarry not being a regular stopping place or station of any kind, in the meaning of that term, the engineer of a passing train was not required by the rules to sound the whistle on his approach to it, unless he was signaled from the men there at work; and then he was required to sound the whistle, not to notify them of his approach, but rather as an answer to, and recognition of, their signals. The full details of the purposes for which the men at the quarry were required or permitted to put out signals to passing trains are not set forth in evidence, as would have been more satisfactory; but this much is shown, namely, that these men were to put out the signals when there were obstructions on the track there, and these signals were a green flag, advising the engineer to slow up and get his train under his control, and a red flag, to stop. It is further stated that the signals were to be regulated by the person in charge of the quarry. We gather, also, that there was a rule of the company (whether this same one or another, we cannot determine), which required any person placing an obstruction on the track to give the necessary signals to passing trains, and also that it was the duty of one finding an obstruction on the track to g-ive these signals at once. In all cases, it would seem from the evidence, the signals were to be placed at stated distances from the .point of obstruction, either way, and the distances named, we infer, were thought to be sufficient to enable the engineers to stop, or get their trains under control, before reaching the point of danger. It will thus appear that the issue made amounts to nothing more than a controversy as to the relative value and efficiency of the rule suggested by appellee, and the one in vogue by the company ; that is to say whether the engineer of the approaching train should be required by the rules to sound the whistle as a warning to those at the quarry of his coming, or that the men at the quarry should give signals to him of any cause to slow up or stop, and he should sound the whistle in response to their signals, not as a notice of his coming, but rather that he has observed and will heed the warning made by the signals at the quarry. In the one case the whistle would always be sounded ; in the other, it would be sounded only as there was any special local reason for stopping or getting the train under control. It is said in Railway v. Adcock, 52 Ark. 406, (which was a case not unlike this one in respect to the rules and regulations of the railway company, although unlike this-one in the particular object of these rules, as therein stated) that, “the facts being uncontroverted, it was the province of the court to declare the regulations reasonable. To submit the question to the jury for determination,- under the circumstances, was simply to leave the matter to their discretion, which was error.” That the mere reasonableness of a rule or regulation is purely a question of law, and not of fact, as announced in that case, is supported by the following : Vedder v. Fellows, 20 N. Y. 126; Ill. Central Ry. Co. v. Whittemore, 43 Ill. 420 ; and inferentially by Hobbs v. Tex. & Pac. Ry. Co. 49 Ark. 357. In Ill. Central Ry. Co. v. Cole, 43 Ill. supra, it is said, in explanation of the doctrine : “It was proper to admit testimony, as was done, but, either with or without this testimony, it was for the court to say whether the regulation was reasonable, and, therefore, obligatory upon the passengers. The necessity of holding this to be a question of law, and, therefore, within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent regulations can be established. If this question is to be left to juries, one rule would be applied by them today, and another tomorrow. In one trial a railway would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations.” The rule in vogue, as shown in evidence in this case, does not in terms extend to the protection of employees passing from point to point on hand-cars while engaged in the legitimate prosecution of the company’s work. Perhaps the very meagre statements of the witnesses testifying on this subject were.confined to cases of obstructions at the quarry, because the minds of the witnesses were mostly directed to that point, in connection with the inquiry as to what was not the duty of the engineer of an approaching train, as to the men then at work; and perhaps a further examination of the witnesses on the subject might have discovered some additional rule. Be that as it may, the little of the rules and regulations of defendant company that was brought out in evidence does not seem to us to have any very direct bearing upon the subject of protection to employees running on hand-cars. It may be that there are none such, and it may be that special precautions in each instance and on each occasion is thought to be best. We cannot pass any judg'ment on this phase of the question, since the evidence g'ives us no sufficient data. On the other hand, the rule suggested by appellee as a proper one could under no circumstances possess any virtue, except in cases of persons near enough to the quarry, and the sound of the whistle there, to hear it, and yet far enough away to have more time to get off the track than they would have after the train comes in view and sounds the whistle, as is the rule in vogue, or as was done in the present case. It is impossible to say how far or near, then, per-' sons must be to hear the whistle in any case, and still more so, wffien they are on a running hand-car, in a rugged and hilly country, where the transmission of sound is obstructed and the sound itself is lost in the more immediate noise of the running car. Sounding the whistle at the quarry, or at any other point, would of course afford no protection to persons out of hearing, and yet so far from their destination as that they will be overtaken. The positive evil of the rule suggested is made apparent, for, having taken the place of a better rule, perhaps, it is nevertheless, of itself, in that case useless. The suggested rule, therefore, would only be applicable to special instances, and its application, if attempted to be extended beyond these special instances, might interfere with the application of more salutary general rules. We are unable to say that the refusal of the company to have the regulation suggested by the appellee was unreasonable. At all events, it was error to submit the question to the jury. Leaving the subject, then, of the making and publishing of suitable rules, we come now to consider acts of negligence on the part of the company’s employees, which were the proximate or contributory cause of the injury complained of. It is too well settled to admit of discussion that a servant injured by the negligence of a mere fellow servant has no cause of action against the master. A co-servant may sometimes be guilty of negligence resulting in injury to another servant, while he is in the performance of some duty belonging to the master, and thus make the master liable ; but the rule is unbending that a master is not liable for an injury to one of his servants which has been caused by the negligence of a fellow servant, while the negligent one was acting in the sphere of his employment as such. This being the rule, universal in its application, it is useless to discuss, in this or any other case, the negligent acts of a mere fellow servant to the deceased. We are principally, if not altogether, concerned in the inquiry as to who, connected in any manner with the accident resulting in the death of Golden, was a vice-principal, if such there was. The rule, if, indeed, it can be called a rule, by which the relation an employee sustains to the master and to other employees may be determined in any case, is fully discussed by this court in the late case of Bloyd v. Railway Co., ante p. 66, and the authorities therein cited, and we will not attempt a further discussion of the principle, except in so far as it may bear upon its proper application in this case. It goes without saying that railroading, in almost all of its departments and branches, is such a dangerous business as that, in order for the company to do its duty to its employees, in exercising ordinary care looking to their safety, security and protection, much of the work, by reason of its complications and number of men engaged, requires its control, direction and supervision. The master may perform his duty of supervision in person, or he may delegate it to another, in which latter case, however, he is not relieved of any of its obligations in case of a failure of performance on the part of his vice-principal, or middleman, any more than if the failure was his own, while acting personally in the matter. The question as to who is a vice-principal or fellow servant, in any given case, is mostly, if not altogether, a matter of fact in the present state of the law; each case standing on its own peculiar state of facts. The doctrine of risks assumed by one entering into the employment of another, and the non-liability of the master for injuries resulting to an employee from the carelessness and negligence of a fellow servant, is well expressed in the following statement, and we think it is sustained by all the authorities : “ He who engages in the employment of another, for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services. The perils arising from the carelessness and negligence of those who are in the same employment are no exceptions to the rule ; and when a master uses due diligence in the selection of competent and trustworthy servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service.” The foregoing statement embodies the principle enunciated in Little Rock, etc. Ry. Co. v. Duffey, 35 Ark. 602. We deem it unnecessary, in this connection, to discuss the law applicable to cases of contributory negligence, as that is so well settled as to require no other consideration than that we may give to it in discussing-the instructions in this case. 2. iustruclicence disapproved. The first instruction given by the court at the instance of plaintiff is in these words: “You are instructed that the statutes of Arkansas give a right of action whenever the death of the person shall be caused by the wrongful act, neglect or default of any person, company or corporation, in the name of the ' personal representative of such deceased person, for the benefit of the next of kin of such decedent; and if you find, from the evidence, that the decedent, George C. Golden, was killed by any of the alleged wrongful acts, negligence or default of defendant company, then you will find for the plaintiff, and. assess such damages as you shall deem warranted from the whole evidence and instructions of the court, unless you further find that the deceased by his own concurring negligence contributed to his death.” 3. Duty of There are three separate and distinct charges of negligence made specifically in the complaint, and only three. The first is that the defendant company was negligent in not informing the agent of the company in charge of the quarry when the extra freight train would pass. This allegation is, of course, based upon the objection that there was a failure to have a regulation to that effect. That question has been disposed of, against the contention of the appellee, in our discussion of the reasonableness of the rules, and conclusion thereon. 4- Astofaiiure of engineer n0af¿.ve sisr' The second charge of negligence in the complaint is 000 r that the engineer in charge of the extra freight train was guilty of negligence in not sounding the whistle or giving the usual notice of his approach to the quarry, thus enabling the deceased to have got off the track in time to save himself. The failing to sound the whistle without a signal .from the quarry-men was no negligence on the part of the engineer of the approaching train, as the rules and regulations did not require him to do so. Nor was he negligent in failing to give any other notice of his approach, for the same reason. Besides, it is not shown, or attempted to be shown, or contended, that the engineer was anything else than a fellow-servant to the deceased. 5. As to risks assumed, by servant. The third charge of negligence in the complaint is that James Sellers, the foreman in charge of the rock quarry, required or procured the deceased, one of his. laborers at the quarry, to be on the railroad track (on the hand-car) at the time when, being young and inexperienced, he was exposed to the danger of collision with trains running' on irregular time. In the instruction immediately following this one, it is stated by the court, at the instance of plaintiff, that the placing of the deceased on the hand-car by the foreman was in the line of the foreman’s business and of the employment of the deceased, or words to that effect. If that be true, there was no negligence in the foreman’s placing the deceased on the hand-car for the purpose of assisting in propelling the same to Ravenden, notwithstanding his youth and inexperience; and if, on the other hand, it was not strictly in the line of his employment, yet, if he continued in this extra hazardous service after being informed of its peculiar hazard and danger, he could not complain on that account merely. After all, it does not appear that there was any extra hazard in this particular service that all men of ordinary intelligence do not fully understand, unless it be that extra trains are run on no regular schedule, and are not as capable of being regulated by rules as are regular trains. The control of the movements of this hand-car is not shown to have been any part of the work of the deceased. The question of his youth and inexperience was not in this case exactly like that question as it arises in most cases. Here his experience, if he had experience, may not have aided him to any great extent, while his inexperience had little to do with increasing the dangers of the situation. The experience of the foreman was the experience that, mostly, if not altogether, was expected to affect the success of the run on the hand-car. The inexperience of the deceased might have rendered him less self-possessed in the moment of danger, and the less skilled in escaping and extricating himself from danger when it was upon him, and the hazard was therefore greater than that of work he was acquainted with ; but his ' inexperience probably had nothing to do with running the hand-car into danger, for he did not control its movements. The first instruction was erroneous, and not only erroneous, but so much so as to be incurable by any other, since, under any state of things, we could never know, but that any verdict the jury might render was affected by its mistaken theory. 6- whether vice'principa1, The second instruction given by the court at the instance of plaintiff is as follows, to-wit: “The jury are instructed that if they believe, from the evidence, that the plaintiff’s intestate, at and prior to the date when it is alleged by the complaint that he was killed, was in the employ of defendant company; that he was hired by an agent of the company in charge of the rock-quarry in Lawrence county, as foreman thereof, to work in said rock-quarry; that said foreman was by the defendant invested with authority to employ, control and discharge men at said quarry, such control of the men and the management of their work being referred to his judgment and discretion, and not governed by detailed regulations published or made known by defendant company to both such agent and the deceased; and that said agent, within the scope of such authority, and in the performance of the duties the deceased had been so employed to perform, through negligence and want of due caution, placed said deceased in a position where he was exposed to the danger of being run over by passing trains, and he was, in consequence of such negligence of such agent or foreman, killed by a train of defendant company, and without being himself negligent in the use of reasonable means to avoid the danger, then they will find for the plaintiff.” The hypothetical part of this instruction is based upon evidence going to show that the foreman of the quarry was a vice-principal, representing the master, in charge of the hands and work at the quarry, as well as in the running of the hand-car to Ravenden, stated by the court, in effect, to be a part of the quarry work. That was a legitimate question to submit to the jury. And if the jury should find facts sufficient to constitute the foreman a vice-principal, representing the company. in his control and supervision of the deceased, then it was legitimate to inquire into the negligence of the foreman, which contributed to the death of deceased, whether that negligence consisted in omissions and lack of precaution, in violation of and neglect to avail himself of the rules and regulations, or in affirmative acts. But the particular act named as the act of negligence in the instruction, namely, the act of putting deceased on the hand-car at the time and under the circumstances, was no act of negligence on the part of the foreman, for that was, in the instruction, conceded to be a part of the work the deceased was employed to do. The instruction was therefore erroneous. The fourth instruction asked by plaintiff and given by the court is not so materially wrong but that it might have been corrected by the use of apt expression upon which to predicate the idea that in an emergency one’s want of presence of mind and prudence is sometimes excusable. The fifth of these instructions is not included in the motion for new trial, and the sixth is erroneous because of its indefiniteuess. It is misleading. The objection to the third does not appear to have been insisted on. We deem it unnecessary to consider the instruction asked by defendant and refused by the court, since the judgment of the court below must be reversed for the error pointed out. Reversed and remanded, with leave to plaintiff to amend his complaint if he so desire.