Williams v. Union Switch Signal Co.

POLLEY, P. J. This action was brought for the recovery of damages for personal injuries alleged to have 'been caused by the negligence of defendant. It is alleged in the c-cmplaint, that at and for some time prior to the injury, defendant, a corporation, was engaged, as an independent contractor, in installing a system of electric signals along the right of way of the Chicago', Milwaukee & St. Paul Railroad between Milbank and Aberdeen. Plaintiff was employed as a laborer in the performance of said work. The defendant maintained, -a hoarding camp for the purpose ■ of 'boarding the men so engaged, and also maintained a (small gasoline-propelled car for the purpose of conveying said employes to and from their work. This car was in charge of — 426 — and was operated1 by one Frizell, who acted; as foreman of the crew with whom plaintiff worked, and who is alleged to have acted in the capacity of vice-principal for the defendant. On the day of the accident that resulted in plaintiff’s injury, he, with others, was 'being- conveyed from the place where they had been at work to the said camp, for their noonday meal. Plaintiff was riding in the place asigned to him for that purpose (on the front end of the said car), and alleges that the said car was moving at a rate of speed of 20 añiles or more per hour, and that, “while traveling at a speed of 20 miles -per hour, or more, the said defendant, by its agent, the said Frizell, negligently and carelessly and without warning, applied the brakes to said car, thus causing the same to stop or halt very suddenly and in a dangerous manner, and caused this plaintiff to be thrown, from the said car and to run against and upon the same, thereby causing to and inflicting upon this plaintiff” the injury complained of. Plaintiff further alleges that, at the time of the said accident, the said Frizell was inexperienced in the operation of cars such as the one then in use, and that 'he was incompetent and unable to properly operate the same; that the defendant had full knowledge of the said incompetency of the said Frizell and of his inability to operate said car; that plaintiff had no knowledge at that time of the lack of experience and inability of the said Frizell; and that he boarded said car at said time relying upon and fully believing that defendant had performed its duty to plaintiff in providing for him a reasonably safe means of transportation. Plaintiff alleges that,' as a part of his contract of employment, defendant agreed to furnish transportation of plaintiff between said boarding camp and the various places along said line of railway where said work was 'being carried on. Defendant denied all .the material parts of the complaint, except its corporate existence and the employment of plaintiff, and, by way of affirmative defense, alleged that plaintiff’s injuries resulted solely from bis own carelessness and negligence in his manner of riding on the said car. At the close of plaintiff’s evidence, defendant moved for a directed verdict upon the grounds: First, that the evidence did not show any negligence on the part of the said Frizell in the operation or management of the said car; second, that the evidence did not show any negli — 427 — gence on the part of the defendant in the employment of said Frizell; and, third, that the evidence showed 'conclusively that, plaintiff’s injury resulted1 solely from his own negligence. The-motion was denied at that time, but it was renewed at the close of all the evidence, when the trial court directed a verdict for defendant, and, from the judgment entered upon such verdict,, plaintiff appeals. [1-4] It is' the contention of respondent that appellant and the said Frizell were fellow servants, and that, before appellant can recover, he must show, not only that the injury complained of was the result of Frizell’s negligence (a fact which respondent does mot admit), but that he was so incompetent to perform the duties assigned to him that respondent was guilty of negligence in employing him for that purpose. It is further contended that the complaint was drawn, and the case was tried, upon this theory; and it is evident that this theory was adopted 'by the trial court. It is true, there are certain allegations in the complaint that appear to have been drawn upon this theory. These allegations are found in paragraphs 3 and 7 of the complaint, but there-are other paragraphs stating facts sufficient to constitute a cause of action upon the theory that the relationship of -carrier and passenger existed between appellant and respondent at the time of the injury. It is alleged that, as -a part of the contract of employment, respondent agreed to furnish appellant .transportation to- and from the place of work; that the said gasoline car was maintained and operated for -the purpose of transporting appellant, and other laborers, to and frota, said work; that i-t was the -duty of the said • Frizell to handle, -manage, -and operate the said car while said laborers -were being so conveyed; and -that no one but Frizell was permitted to, -or did, in any way, participate in the control or management of said car. T'hes-e allegations are fully supported by the evidence. Appellant took no part in the operation of’ the sai-d -car and had ¿0 duty whatever to perform in connection with the operation thereof. At the time- of the accident, he was being conveyed by defendant from his place of work to -h-is noonday meal. This was being" done by defendant pursuant ■to the terms of the contract of employment.' Defendant was under obligation to furnish this -transportation, though appellant was. under no obligation to avail himself of the opportunity to ride.. — 428 — He could have walked to camp, or he could have carried a lunch out with him in .the morning and not have gone to camp at that time at .all. The transportation was furnished as a matter of convenience to him and, by.the terms of the contract of employment, was a part of the compensation for his labor. The car was 'not an instrumentality for the performance of the work in which appellant was engaged, but was merely a means of transportation to and from the place of work. This state of facts, appellant contends, constitutes the relationship' of carrier and passenger between the appellant and respondent, and not the relationship of fellow servants between the appellant and the said Frizell. If this contention is 'correct, then it is immaterial whether respondent knew Frizell to be an -incompetent workman or not. If respondent stood -in the relationship of carrier, it was its duty, in the first instance, to exercise reasonable care in transporting appellant and to take reasonable precautions for his safety. Just what constitutes the relationship of carrier and passenger has been a subject o-f much discussion by the courts in recent years, and the conclusion reached are not entirely harmonious. It sem-s to be genei'all-y agreed, however, that, when an employee is being carried in his employer’s vehicle in connection with, or in consequence of, his employment, he i-s not a passenger, but a fellow servant of those •operating' said vehicle. On the other band, -if a person is traveling as a mere matter of convenience to himself, although he is being carried free by bis employer, he .is to be considered a passenger. 4 R. C. L,. § 476, •and cases cited. Respondent contends that when the accident occurred appellant was receiving pay for his time, and -respondent was entitled to bis services. This contention is based upon the fact that the accident occurred at about 11.30 a| m. But this is not the test. No part of the service far -which appellant was receiving -pay was to be performed while he was on the car. He was not expected or required to- take any part whatever in the operation of -the qar, and, -while on said car, could perform-, no ■part of the service for which he was employed-. His work was at various points 'along the railroad right of way, and no. place else. He could not commence work in the morning until he arrived at the-place where his work was to ibe performed. Neither was he required to perform any more work after he was directed to board — 429 — said car and -go to camp. His labor ceased when they started for camp and did not commence ’again until he returned to the place of work, and it is immaterial whether this was at n :30 or 12 o’clock. Louisville & N. R. Co. v. Scott’s Adm’s, 108 Ky. 392, 56 S. W. 674, 22 Ky. Law Rep. 30, 50 L. R. A. 381; Hebert v. Portland R. Co., 103 Me. 315, 69 Atl. 266, 125 Am. St. Rep. 297, 13 Ann. Cas. 886 and note; Dickinson v. West End St. Ry. Go., 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284; Transit Co. v. Venable, 105 Tenn. 460, 58 S. W. 861, 51 L. R. A. 886; Marshall v. Nashville Ry. & L. Co., 118 Tenn. 254, 101 S. W. 419, 9 L. R. A. (N. S.) 1246, 12 Ann. Cas. 675; Harris v. City & E. G. R. Co., 69 W. Va. 65, 70 S. E. 859, 50 L. R. A. (N. S.) 706 note, Ann. Cas. 1912D, 59. See, also, Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586, where the cases on this -sul> ject are collected and reviewed .at length. It may be true, as claimed by respondent, that the -said Prized worked with the other employes while engaged in the installation -of the said -electrical signals; that he did the same kind, and an -equal .amount, of work .as the -other workmen, and it may be th-al that fact would -constitute the relationship of fello-w servants so long as they were thus engaged-; but, when they -ceased such labo-i and hoarded said car, a new situation arose. Appellant and Erizell -ceased to be co-laborers or coemployees, and Prized took the place of his principal. Appellant was th-en being conveyed tc camp by respondent pursuant -to- a duty that respondent -owed him and i-n the performance of which Prized was occupying the po--sifuon- of the defendant and- was no longer a fellow servant oí appellant. Under this theory of the case, was there sufficient evidence to warrant the jury in finding for appellant? He testified that, just prior to the accident, the -car was- running at a rate of 20 or m-o-re miles per hour; that he was riding on the front end of the car and looking forward; that, while the car was sc mo-ving and without any warning of what was about to take place, Prized -cut off the power and1 applied the brakes;. that this brought the car to an abrupt stop; and that it was this action of the car that threw him off and caused his injury. The evidence standing alone, if believed 'by the- jury, wou-l-d warrant a verdict for appellant; and, while the witnesses on. -behalf of respondent — 430 — contradicted some of appellant’s testimony, this presented only a question of veracity or the recollection of the witnesses as to what took place at that time, and should have been submitted to-the jury. The judgment appealed from is reversed, and a new trial is-awarded.