Philadelphia, Baltimore, & Washington Railroad v. Tucker

Air. Justice Eobb delivered the opinion of the Court: In the brief of appellant, which is one of unusual merit, the constitutionality of the employers’ liability act of June 11th, 1906 (34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1909, p. 1148). is challenged. This act has been twice consid [138] ered by tbe Supreme Court of tbe United States. In the Employers’ Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141, wbicb embraced a series of cases, and which were elaborately presented by able and astute counsel, tbe court declared tbe act unconstitutional in so far as it related to carriers engaged in business in tbe states. Subsequently, in El Paso & N. E. R. Co. v. Gutierrez, decided Nov. 15th, 1909, 215 U. S. 87, 54 L. ed. 106, 30 Sup. Ct. Rep. 21, tbe constitutionality of tbe act as applied to tbe District of Columbia and tbe territories was brought under review. Tbe court, in a unanimous opinion, reached the conclusion “that in tbe aspect of the act now under consideration tbe Congress proceeded within its constitutional power.” This court, in Hyde v. Southern R. Co. 31 App. D. C. 466, carefully considered tbe act as applicable to tbe District of Columbia, tbe decision in El Paso & N. E. R. Co. v. Gutierrez then not having been rendered, and pronounced tbe act constitutional in so far as it applies to this District and the territories. An examination of tbe points advanced by counsel, as disclosed by tbe report of tbe case, shows that most, if not all, tbe questions raised by counsel in this case were brought'to tbe attention of tbe court in the Employers’ Liability Cases. Rut even if this were not tbe fact, we would hesitate to declare a law unconstitutional that bad been twice before the court of last resort, and, so far as it applies to this District, had been declared to be'constitutional. In such a situation we must assume that the Supreme Court, before declaring tbe act constitutional, considered it in all its phases. Certainly it- would not be becoming in a court of inferior jurisdiction to attempt to demonstrate to tbe higher tribunal tbe incorrectness of its conclusion in a given case. Such being the situation, we shall dispense with a useless task, and pass over without comment this assignment of error. 2. It is specified as error that tbe court refused to bold “that tbe plaintiff’s intestate at tbe time of tbe accident was not on duty, was not in tbe actual service of the defendant, and was not an employee within tbe contemplation of tbe employers’ [139] liability act of 1906, and that said act was inapplicable to the case at bar.” It is conceded by defendant that, had Tucker reached the Annex, assuming that he had been called for freight train service, he would have been in the employ of the defendant company within the meaning of sec. 1 of said act of 1906, notwithstanding that technically his term of service would not have commenced until he had reached the freight yards to which the Annex was to carry him. This concession is made upon the theory that he would then have been upon a conveyance provided by the master, and hence under the master’s control. There are numerous cases sustaining this view. It is contended, however, that, until Tucker did reach the Annex, he was not a servant of the company within the contemplation of the act. When Tucker was killed he was upon the premises of the defendant, in response to its call, to assume the duties he had been engaged by the defendant to assume, and for their mutual interest and advantage. Can it be that under such circumstances the relation which the decedent sustained to the defendant was that of a mere stranger ? Is it possible that the act under consideration warrants a distinction so fine as to permit a master to escape liability for negligence resulting in the injury of one hired to perform service, because the injury occurs before the service is actually undertaken, notwithstanding that, at the time of the injury, the servant is properly and necessarily upon the premises of the master for the sole purpose of his employment? We think not. Such a rule, in our view, would be as technical and artificial as it would be unjust. We think the better rule, the one founded in reason and supported by authority, is that the relation of master and servant, in so far as the obligation of the master to protect his servant is concerned, commences when the servant, in pursuance of his contract with the master, is rightfully and necessarily upon the premises of the master. The servant in such a situation is not a mere trespasser nor a mere licensee. He is there because of his employment, and we see no reason why the master does not then owe him as much protection as it does the moment he enters [140] upon the actual performance of his task. In the present case, assuming for the moment the existence of a way through said opening, and across the two main tracks adjacent thereto, we can see no reason for a distinction between the master’s obligation to Tucker while he was traveling over that way, and its obligation to him after he had entered the Annex, which was only another agency provided by the master for the accommodation of its servants. In Northwestern Union Packet Co. v. McCue, 17 Wall. 508, 21 L. ed. 705, a bystander was hired on a wharf to assist in loading a boat which was soon to sail. This man had been occasionally employed in such work. His service occupied about two and one-half hours, when he was directed to go to the office, which was on the boat, and get his pay. This he did, and then attempted to go ashore. While on the gang plank the plank was recklessly pulled from under his feet, and he was thrown against the dock, receiving injuries from which he died. Owing to the somewhat peculiar nature of the case, it was held that it was for the jury to say, although the facts were undisputed, whether the relationship of master and servant existed until the man got completely ashore. The concluding sentence of the opinion by Mr. Justice Davis was as follows: “The defense-at best was a narrow one, and in our view more technical than just.” In Ewald v. Chicago & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591, it was held that an engine wiper employed in the defendant’s roundhouse, while going to his work along a pathway crossing 'the defendant’s yard and tracks, was an employee of the defendant, hence could not recover for injury resulting from the negligence of a fellow servant on the freight train causing the injury. The court in its opinion said: “The peculiar facts of this case which make him such appear to involve precisely the same principle as that class of cases where the plaintiff was being carried on his way from and to his placo of labor by the railroad company, by consent, custom, or contract, and was injured by the negligence of other employees of the company. This carriage of the plaintiff was the means, fácil [141] ity, and advantage to which he was entitled by reason of his being an employee or servant, which entered into and became a part of his contract of employment, or were incidental and necessary to it * * * again it may be said that the plaintiff was still an employee because he was attempting to use the pathway between the cars as the only customary and convenient means of access to and exit from the roundhouse, which the company had provided and was under obligation to keep open and safe for him and his fellow workment, when he was injured.” In Boldt v. New York C. R. Co. 18 N. Y. 432, plaintiff was injured while walking on a new track from his house to his work. The court said: “But he was in the defendant’s employment, and doing that which was essential to enabling him to discharge his particular duty, viz., going to the spot where it was to be performed, and he was, moreover, going on the track where, except as the servant of the company, he had no right to be. He was there as the employee of the company, and because he was such an employee.” But it is urged that Fletcher v. Baltimore & P. R. Co. 168 U. S. 135, 42 L. ed. 411, 18 Sup. Ct. Rep. 35, sustains the view of the defendant on this question. We do not so read that case. There the plaintiff at the time of the accident had ended his work for the day, “and had left the workshop and grounds of the defendant, and was. moving along a public highway in the city with the same rights as any other citizen would have,” when he was struck by the rebounding of a stick of timber thrown from a train of the defendant by one of its employees, a practice permitted by the company, and injured. It was held that “the liability of the defendant to the plaintiff for the act in question is not be gaged by the law applicable to fellow servants, where1 the negligence of one fellow servant by which another is injured imposes no liability upon the common employer.” Manifestly that case and this are materially different. There the plaintiff was not on the premises of the defendant, but upon a public highway, where his relations to the defendant were precisely those of the general [142] public to it. Its relation to him, therefore, in such a situation, was precisely what it would have been to any other pedestrian. Here, however, the plaintiff was upon the premises of the defendant, upon its invitation, in the line of his employment, and solely because of such employment. We hold, therefore, that, ’at the time of his death, Tucker was within the protection of said act. 3. Did the court err in refusing to hold that the defendant company, as a matter of law, was not guilty of negligence? Under this assignment it is urged that the act under consideration “refers only to ways and works established and maintained by the carrier,- — the language used being ‘its’ ways and works, — ■ and not the ways which might be established by others, whether employees or third parties, of which the carrier might or might not have knowledge,” and hence that the court erred in refusing to instruct the jury as in effect requested by the defendant, that there was no duty imposed by any law in force at the time of the accident, requiring the defendant to maintain watchmen, gates, signals, or other appliánces, to indicate .the approach of engines and trains upon its tracks at or near said opening. Sec. 1 of said act (34 Stat. at L. 232, chap. 3013, U. S. Comp. Stat. Supp. 1909, p. 1148), provides “that every common carrier engaged in trade or commerce in the District of Columbia * * * shall be liable to any of its employees, * * * for all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, ways, or works.” Was this a way within the meaning of the act? The uncontradicted testimony shows, as previously stated, that, for two years prior to this accident, employees of the defendant daily used this opening in going to *and returning from their work. The policeman on that beat testified that “they came through there a dozen in a string, straggling along like men coming from work.” Another witness, an extra bralceman of the defendant, testified “that he had seen railroad men on lots of occasions go through the opening, prior to Tucker’s death.” A switchman [143] of the defendant, employed at said ND tower, where, of course, he would usually have an unobstructed view of said opening, testified “that he had quite often seen employees of the company use that opening as a crossing place to go to the Annex, or to go to or come from their work.” Another railroad man testified that, from December, 1906, to March, 1907, his employment was such that “he saw defendant’s employees every morning and every evening make use of the opening in the wall as a crossing place.” Several other witnesses testified to the same effect. The testimony further showed that there was a path through Garfield park on the north leading to this opening, and, as previously pointed out, that the Annex would usually stop at a point about opposite the opening to receive the men coming therethrough. This opening was upon the premises of the defendant, and, of course, under its control. Had the defendant desired to prevent the use of this opening and the tracks adjacent thereto as a means of access to and exit from its Annex, yard, and roundhouse, it might easily have done so; but no precautions whatever were taken to prevent such use. The long-continued practice fully justified the inference that this was with the knowledge and consent of the defendant. Baltimore & P. R. Co. v. Golway, 6 App. D. C. 143; Glaria v. Washington Southern R. Co. 30 App. D. C. 559. It is, we think, clear that, had the defendant provided a way for pedestrians through this opening and across the tracks adjacent thereto, by putting ordinary planking between the rails and possibly between the opening and the tracks, and had then notified its employees that such way was for their convenience, such a way would have been within the protection of the act. The word, “ways” was placed in the act for some purpose, and if it does not embrace a path provided by the master on its premises for the use of the master’s servants, we fail to appreciate its function. If the master, therefore, may establish such a rvay by positive action, why should it be relieved of responsibility if it permits the establishment of a like way by others ? [144] In either case, we think, the way is its way within the meaning of said act. The learned trial justice, in his charge to the jury on this phase of the case, said: “The theory of the plaintiff’s case is that the railroad company was at fault in providing him a way of approach to his work over its tracks, which was insufficient or defective, in that it was not properly guarded, and also in that it ran its train at an improper rate of speed over this way, where he was expected to pass. The first point I will direct your attention to is this point in regard to the way itself. The theory of the plaintiff’s case is that the railroad company had permitted the men to come in through this opening, and go to this train called the Annex, so regularly, for such a long period of time, at all hours of the day and night, that it had become an established way for the men to use, as much so as if there had been a regular beaten path there, or something to indicate that that was the crossing. The theory of the plaintiff’s case is that the railroad company had so treated it, knowing that the men were using it, making no objection to it whatever, putting up no warnings, and never intimating to them that it was not to be so used; that it had thereby become, by the conduct and treatment of the defendant, a regular way of approach which the men, as reasonable men, in the service of the company, had a right to understand they were to use, because it was so much quicker than the safer way around. “So * * * it is urged that they ought to have had some watchman there, if they were to establish it as a way, or some guard of some sort, or some signal; so that when the men were crossing to come to the Annex, they would be warned that the train was about-to pass over the tracks.” Sec. 1 of the act visits upon the carrier or master responsibility for damage resulting “from the .negligence of any of its officers, agents, or employees, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works.” What is the significance and meaning of the word “insufficient” as above [145] used ? The word as defined in the Century Dictionary means “lack of sufficiency; deficiency in amount, force, or fitness; in-adequateness; incompetency; as insufficiency of supplies; insufficiency of motive.” The adjective “insufficient,” as defined by the same authority, means “not sufficient; lacking in what is necessary or required; deficient in amount, force, or fitness; inadequate; incompetent.” A failure of a common carrier to provide proper and adequate brakes on its engines and cars would would be an insufficiency of equipment, within the meaning of the act. Can it be said that this way, which, as we have seen, had become established for the use of the servants of the defendant in going to and from their work, was an adequate and fit way ? Is it not apparent that it was lacking in what was necessary or required, in that no protection whatever was provided against accidents that such a situation was liable to result in ? Congress in this act was evidently attempting to require common carriers to take proper precautions to protect their servants. Why, then, should the carrier be absolved from responsibility for neglecting to provide a way for its employees properly safeguarded, and therefore adequate and sufficient? It seems to us that such a situation is within the spirit and purpose of the act, and equally within the letter thereof. We conclude, therefore, that the question of the sufficiency of this way was properly submitted to the jury. 4. Did the court err in permitting the jury to compare the negligence of tho decedent with the negligence of the defendant, and to render a verdict in favor of the plaintiff if they found the negligence of the decedent slight and that of the defendant gross ? Section 2 of the act in terms provides that this shall be done, but further provides for the diminution of damages in proportion to the amount of negligence attributable to the employee. The court’s charge to the jury was in strict compliance with these provisions of the law.* [146] 5. In this assignment it is sought to interpose as a defense to the action the doctrine of assumption of risk. While the act does not in terms refer to this doctrine, it does provide in sec. 3 “that no contract of employment * * * shall constitute any bar or defense to an action brought to recover damages for personal injuries to or death of such employee.” The doctrine of assumption of risk results from the contractual relations of the parties. In the absence of any statute regulating the matter, the law implies that the contract of employment contemplates that the servant assumes certain risks. It is argued that Congress did not intend to change this rule, and hence that Tucker assumed the risks incident to the use of said way as a means of going to his work. In this connection it is argued that Tucker voluntarily selected the more dangerous way when he might have proceeded [147] down Virginia avenue to South Capitol street, where he could have gone under the tracks, and thence back to the Annex. Had lie chosen that way, it would have required him to go 1,100 feet further, and, moreover, the testimony shows beyond dispute that the way he did choose was the customary and usual way for employees living in his locality. Moreover, the act ordains that “all questions of negligence and contributory negligence shall be for the jury.” In 1897 an employers’ liability act was passed in North Carolina. Sec. 2 of that act provides “that any contract or agreement expressed or implied, made by an employee of said company to waive the benefit of the aforesaid section, shall be null and void.” Thereafter suit was brought by a railroad employee who was injured by reason of a patent defect in an engine, and the defense was that, inasmuch as he had continued to use this engine for some time after this defect was known to him, he assumed the risk of accident resulting from said defect. The court, however, ruled otherwise. The court said (Coley v. North Carolina R. Co. 128 N. C. 534-538, 57 L.R.A. 817, 39 S. E. 43) : “It is agreed that assumption of risk is contractual, either by express terms or by implication; and disputes usually were as to whether the plaintiff contracted by implication or assumption for dangers not existing at the date of employment. And it would seem by this act that the legislature intended to put an end to such contentions, by saying in the 1st section that he shall have a right of action for injuries caused by such defective machinery, and by providing in the 2d section that he cannot waive this right by contract expressed or implied.” The court in this opinion also called attention to the English case of Smith v. Baker [1891] A. C. 325, in which was considered the English employers’ act of 1880, which provides that an employee shall not maintain an action against his master for injuries received from defective machinery, ways, etc., unless he gives notice of such defects to the master or some superior, unless the master already knows of the defects. A majority of the lords who rested their opinions upon the act agreed that it did away with implied assumption of risk. [148] . In O’Malley v. South Boston Gaslight Co. 158 Mass. 135, 47 L.R.A. 161, 32 N. E. 1119, the court held that the statute of that state did not strike down the doctrine of assumption of risk, because “the statute does not attempt to take away the right of the parties to make such contracts as they choose, which will establish their respective rights and duties.” See also Davis Coal Co. v. Polland, 158 Ind. 607, 92 Am. St. Rep. 319, 62 N. E. 492; Narramore v. Cleveland, C. C. & St. L. R. Co. 48 L.R.A. 68, 37 C. C. A. 499, 96 Fed. 298; Kelley v. Great Northern R. Co. 152 Fed. 211. In interpreting this act we should bear in mind “the purpose of Congress to regulate the liability of employer to employee, and its evident intention to change certain rules of the common law which theretofore prevailed, as to the responsibility for negligence in the conduct of the business of transportation.” El Paso & N. E. R. Co. v. Gutierrez, decided by the Supreme Court of the United States November 15th, 1909, 215 U. S. 87, 54 L. ed. 106, 30 Sup. Ct. Rep. 217. Having that purpose in mind courts ought not to place such a construction upon the act, unless compelled by its terms so to do, as will in a large measure defeat such ■ purpose. There are comparatively few employees of common carriers who would sacrifice their positions because of known defects. We think this act was intended to quicken the responsibility of carriers, and, by doing away with the doctrine of assumption of risk in cases based upon their negligence, compel them to take proper precautions for the safety of their servants. In other words, the act was meant to discourage negligence. It is an easy thing to say that no one is compelled to remain in the service of the carrier, but experience demonstrates that this is only half a truth. It is the. policy of the law to protect so far as possible, those pursuing, and oftentimes necessarily pursuing, so hazardous an employment.' It is enough that they must assume the intrinsic risks of their calling without compelling them to assume the negligence of their employers. , Our attention is directed to the difference in the phraseology of the employers’ liability act of April 22d, 1908 (35 Stat. at [149] L. 65, chap. 149, U S. Comp. Stat. Supp. 1909, p. 1171), as bearing upon the question under consideration. That act excuses employees from the rule of contributory negligence in any case where a failure by the carrier to comply with any statute enacted for the safety of employees contributed tO' the injury complained of. The act then provides that the doctrine of assumption of risk shall not be applicable to such a situation. We see no reason why that act should be interpreted as a legislative declaration that the prior act of 1906 did not do away with the doctrine of assumption of risk, in so far at least as the injury forming the basis of the action resulted from the negligence of the carrier. There was special reason in the later act for inserting a provision in respect of the doctrine. Moreover, it well might be held that, since the first section of the later act in terms charges the master with responsibility for any defect or insufficiency due to its negligence in its cars, engines, appliances, etc., such a statute was “enacted for the safety of employees,” and hence that the failure of the carrier to keep its cars, engines, appliances, etc., sufficiently free from defects would prevent such carrier not only from interposing the defense of assumption of risk, but also from interposing the defense of contributory negligence. In other words, would the carrier, after admitting its negligence in failing to install and maintain proper and sufficient cars, engines, appliances, etc., and the injury resulting therefrom, be permitted to escape responsibility by resorting to the defense of assumption of risk? Clearly had sec. 1 in terms provided that carriers should install and maintain proper and sufficient cars, etc., and that the failure to do so would render it liable for accidents resulting from such failure, and deprive it of the defense of contributory negligence, the carrier would not be permitted to defeat the law by resorting to the doctrine of assumption of risk. Kilpatrick v. Grand Trunk R. Co. 74 Vt. 288, 93 Am. St. Rep. 887, 52 Atl. 531. We are not called upon, however, to interpret the act of 1908, and have alluded to it for the sole purpose of ascertaining, if possible, whether it sheds any light upon the meaning of the prior act. We are not prepared to say that there is [150] anything in the later act which compels a different view than we have taken of the earlier one. Having in mind, therefore, the scope and purpose of the act of 1906, we rule that the trial court was right in refusing the defendant’s instruction upon the subject of the assumption of risk. 6. The defendant requested the court to charge the jury as follows: “The burden of proof is upon the plaintiff to establish, by a fair preponderance of the evidence, that the accident occurred in the manner alleged and described in her declaration, and if the jury shall be unable to determine definitely from the evidence that the decedent, Sidney K. Tucker, was struck by the engine of a train on the southbound track coming from the tunnel, as • alleged in the plaintiff’s declaration, their verdict must be for the defendant.” The court on this point instructed the jury that “the question has been made here as to whether the declaration has been proved in respect to the allegation therein that the decedent was struck-by the locomotive of the defendant company. It is necessary that you should find that by a fair balance of the testimony. If you cannot find it, the plaintiff has failed to make out her case. It is a pure question of fact for you to decide. I have nothing to do with it.” This was a substantial compliance with the defendant’s request. There was ample evidence for the jury on this point, which, however, we do not deem it necessary to review. Y. As to the instruction of the court in respect to the assessment of,damages: It is not disputed that the evidence as to the age, health, earning capacity, etc., of the decedent, was amply sufficient. It was in evidence that the widow was wholly dependent upon him for support. It was also in evidence that the child was born shortly after the death of the decedent. The widow appeared as a witness before the jury, but there was no direct evidence as to her age or health, or evidence as to the health of the child. Neither was there any evidence as to their probable duration of life. It is insisted that the assessment of damages was therefore mere guesswork. We do not think so. The jury was fully advised as to the decedent, who, when he was killed, was only twenty-four years of age. The [151] jury saw the widow, and, as intelligent men, could judge as to her age and health. While annuity or life tables are admissible in evidence, they are not controlling. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 515, 30 L. ed. 257, 7 Sup. Ct. Rep. 1; Boswell v. Barnhart, 96 Ga. 521, 23 S. E. 414; Sutherland, Damages, § 1265. It is not claimed that the damages assessed were excessive, and indeed it could not well be, when it is considered that the plaintiff must have been a comparatively young woman, and that the child was a babe in arms. In Grogan v. Broadway Foundry Co. 87 Mo. 321, it was held that the jury may find the amount of damages from proof of the age of the deceased, and the circumstances and condition in life of the plaintiff. In Southern P. Co. v. Lafferty, 6 C. C. A. 474, 15 U. S. App. 193, 57 Fed. 537, the testimony showed the age of the decedent at the time of his death, the condition of his health, the amount of his earnings, and the extent of his contributions to his mother, in whose behalf the suit was brought. The court held this testimony sufficient on the question of damages. See also Illinois C. R. Co. v. Barron, 5 Wall. 90, 18 L. ed. 591. Finding no error in the record, we affirm the judgment, with costs. Affirmed. On application of the appellant, a writ of error to the Supreme Court of the United States was allowed, April 15, 1910. Footnotes [*] The portion of the trial court’s charge relating to the comparative negligence of the parties was as follows: If you find that it was negligence on his part, and contributory negligence as I have just defined it, then [146] that does prevent the plaintiff recovering in this action, unless you find’ another fact; that is, unless, when you compare that negligence of the decedent with this negligence of the defendant, you say that the defendant’s negligence was gross, and in comparison with, it the decedent’s negligence was slight. . Suppose you say that the defendant company was negligent; that you are thoroughly satisfied of that by the balance of the testimony; that you are also satisfied that the decedent was negligent, guilty of contributory negligence. How, compare the two. Were they about alike? Was one about as careless as the other? Then there can be no recovery, because the act itself provides that the plaintiff may recover provided the decedent’s contributory negligence was slight in comparison with that of the defendant; that is, that the defendant’s was gross, and, in comparison with it, the decedent’s negligence was only slight. If, upon all the evidence, you say that you find, by a fair balance of the testimony, that the defendant was thus guilty of negligence, that that was the cause of the decedent’s death in the way described in the declaration, and that even though the decedent was guilty of negligence on his part that contributed to his injury and death, it was slight in comparison with the gross negligence of the defendant, then the plaintiff would be entitled to recover; but you would be bound, under the terms of the act, to reduce the plaintiff’s recovery in proportion to his negligence. The plaintiff would be required to bear his proportion of .the damages indicated by the decedent’s negligence. — Repostes. ^