Wellman v. Oregon Short Line, etc. Ry. Co.

Per Curiam. The errors relied upon on this appeal relate altogether to the giving and refusal of instructions by the trial court. The court among other things instructed the jury as follows: “9. And so if at the time he was killed, he was engaged in clearing the track of snow or ice, or assisting others to do so, and his death was occasioned by the carelessness of his fellow-servants, or by any cause which from the nature of that work was liable to happen to him without the negligence of the defendant, and did so happen to him, the defendant is not liable in this case.” This instruction was given at the request of the plaintiff. The term fellow-servants was defined by the court in the fourth instruction as follows: “By the term fellow-servants is meant those who are engaged under the same employer in the same general line of duties, as, for example, those who are operating the train with the fireman who was killed, were fellow-servants with him, but those whose duty it was to keep the road in repair were not such fellow-servants.” The court also by the tenth instruction told the jury: “The first question to be decided by the jury, then, is whether the defendant has by its negligence caused the [537] accident; and by the defendant’s negligence is meant, as before stated, the negligence of those to whom it has entrusted a duty to keep the track reasonably safe, whether trackmen or section-men.” The sixth and seventh instructions previously given by the court were as follows: “6. One of these duties, which the defendant as employer owed to the deceased, was to furnish and maintain a reasonably safe track and road-bed; and any servant to whom the defendant delegated this duty, represented the defendant as to that; and his negligence would be the negligence of the defendant so as to render the defendant responsible. 7. There has been some evidence offered tending to show that certain trackmen or a section-master had notice before this accident that the track at that place was obstructed by a slide. If you find from the evidence that those persons, or any of them, knew the condition of the track there, and that they knew the track in that condition was unsafe for the passage of the train, and that they could have warned the train of the danger, and through their neglect they, or any of them failed to warn the train, and that neglect was the cause of the accident, the defendant is liable.” It is argued by defendant’s counsel that the effect of these instructions, when taken in connection with the evidence, is, that although Wellman knew the track was obstructed by snow and slides, and went out on the train for the express purpose of assisting in clearing the track, the defendant was bound to furnish him the same reasonably safe road-bed and track as the law would oblige it to do had he been engaged in the operation of a train thereon in the ordinary course of business. There would be much reason for this argument if the charge of the court stopped here; but from what follows it is clear the court did not submit the case on any such theory, nor could the jury have so understood the law as given by the court. The instruction that the defendant was bound to furnish and maintain a reasonably safe track and road-bed for the [538] deceased, was in the nature of a general statement, and when disconnected from the remainder of the charge, in view of the defense attempted to be made, may have been erroneous; but when the court came to apply the law "to the facts of this particular case, the rule was certainly sufficiently qualified as is obvious from instructions 12, 13, 16, 17, 22, and 27, given among a large number of others of similar import at defendant’s request. These instructions are as follows: “12. If you find from the evidence that the defendant had no knowledge of the existence of the particular snow-bank or slide into which the train in question ran, and that the injury to the plaintiff’s intestate resulted wholly from running into such slide, then I charge you that the plaintiff cannot recover, and you must find for the defendant. 13. If you find from the evidence that the plaintiff’s intestate knew of the existence of snow-slides or -banks along the road, or as a reasonable, prudent man should have known of such slides, and that his injury was caused solely by striking against such slides, then I charge you that the plaintiff cannot recover, and you must find for the defendant.” “16. If you find from the evidence that at or near the point of the wreck, which resulted in the death of plaintiff’s intestate, and before the date of the occurrence, there had been snow storms which had obstructed said road and had prevented its operation for some time prior thereto, thereby increasing the dangers and risks of trainmen in going over such portion of said road, and that the deceased had knowledge, or the means of knowledge, of such condition by the exercise of ordinary prudence, and that notwithstanding such knowledge he continued in his employment until he received the injury resulting in his death, in consequence of the obstruction of such road by snow or slides — if you find such to be the fact, then the plaintiff cannot recover in this tíause, and you must find for the defendant. 17. If you find from the evidence that the injury to plaintiff’s intestate was caused solely by the engine upon which he was riding [539] • running into a snow-bank or slide while such train was engaged in removing snow from the track, and that thereby such engine was forced off the track, I charge you that the plaintiff cannot recover, and you must find for the defendant.” “22. The general rule is, that a railroad company must maintain its track in a reasonably safe condition, and failing to do so it will be liable to its servants for injuries resulting from such defective track; but this rule does not apply whenever the servant injured knew or has reason to know, or as a reasonably prudent man should have known, that such track is in bad condition, and thereafter continues in the employment and service of the company. In such case, the servants assume the risks incident to the road being in bad condition, and you cannot recover from the master for any injuries resulting therefrom.” “27. While the rule generally applicable is, that it is the duty of a railroad company to keep its track suitable and sufficient for the purpose of transporting its employés thereover, and to keep such track free and clear of obstructions, yet when such road is known by such employés to be dilapidated or out of repair, or is known by such employés to be obstructed by snow or slides, then the company is not liable for any injuries resulting by reason of such condition of its road to its employés traveling over the road for any purpose.” In determining whether the jury has been properly instructed, the substance and effect of the instructions, taken as a whole, when they appear in the record, will be considered, and not merely their form, orderly arrangement, or some detached portion thereof. If the court can see that the case has been placed fully, fairly, and properly before the jury by the entire instructions, the judgment will not be reversed, although it may appear that some one instruction taken by itself may not be entirely correct. (2 Thomps. Trials, § 2314.) Taking the entire instructions of the court upon this subject, it is clear that their effect is, that if Wellman knew, or as a reasonably prudent man should have known, that the track was obstructed by snow540 slides or banks, and went out upon the train for the purpose of opening the road, the defendant did not owe to him the same duty to furnish a reasonably safe track and road-bed as it would had he been engaged in the operation of the train thereon, in the ordinary course of business; but he assumed the ordinary risks incident to his employment at the time, and if .his death were caused solely by the train striking against such slides, defendant would not be liable. The instructions quoted as having been given at defendant’s request, ignore the fact that the evidence tended to show that the section foreman in charge of the road at the place of the accident knew of the particular slide ■which caused the derailment of Wellman’s train on the day before the accident, and neglected to in any way warn the persons in charge of the train of such slide or the dangerous condition of the track therefrom, although he had ample opportunity to do so; and the jury is told, in effect, that notwithstanding this fact, the company would not be liable if Wellman’s1 death were caused solely by the train striking this slide. For this reason the correctness of the instructions, as applied to the facts of this case, may well be doubted; but the error, if any, was in favor of defendant, and it cannot complain. The giving of the seventh instruction already referred to is assigned as error. That instruction assumes, without qualification, that a trackman or section-master was not a fellow-servant of the plaintiff’s intestate. (Galveston, etc. R. R. Co. v. Smith, 76 Tex. 611; 18 Am. St. Rep. 78.) Whether he was or not depended entirely upon the facts to be elicited upon the trial. If at the time of the accident the trackman and section-master were engaged in looking after and removing obstructions from the road, caused by the recent storm, and the plaintiff’s intestate constituted one of the trainmen engaged in the same service, or in repairing the road, or removing obstructions therefrom, then, as to such service, the trainmen, trackman, and section-master were fellow-servants, and if one or more [541] of such fellow-servants were negligent, whereby another was injured, there can be no recovery. To avoid misconception, a single observation in relation to instruction numbered seven seems to be necessary. It is as to the effect to be given to the knowledge of the obstruction acquired by the trackmen or section-master on the fifteenth of January, the day before the accident. There is evidence tending to prove that these persons saw the slide that caused the injury on that day, and communicated the fact to the section foreman the same evening. If such were the fact, he was bound to communicate the information to those in charge of the repair, or any other train attempting to pass over the road; and a failure to do so would subject the defendant to liability independent of anything that has been already said. This must be so on principle. The evidence does not disclose the exact nature of the duties imposed on the section foreman by the master, hut it may be safely assumed that in part at least they wTere to look after obstructions on the track, and to cause the same to be removed as soon as possible after it should come to his knowledge. If these were his duties, then as to such duties he represented the master. The other error assigned is as to the measure of damages, which, involving the same questions determined in Carlson v. O. S. L. etc. Co., decided at this term, ante, 450, need no further examination here. The judgment must be affirmed.