Atchison, Topeka & Santa Fé Railroad v. Schroeder

The opinion of the court was delivered by Valentine, J.: This present action was commenced by Jacob Schroeder against the Atchison, Topeka & Santa Fé Railroad Company for $5,000 as damages for personal injuries. It was tried in the court below upon the first count of the plaintiff’s amended petition and the defendant’s answer, and judgment was rendered in favor of the plaintiff and against the defendant for $3,000 and costs, and the defendant, as plaintiff in error, now complains. The evidence of the plaintiff below fairly tended to prove the allegations of that part of his amended petition upon which his case was tried, and we have nothing to do with the other part of his petition, to wit, the second count. Much of the plaintiff’s evidence, however, was contradicted by the evidence of the defendant. The plaintiff’s evidence showed that he was the section foreman of section 4CX of the “El Dorado branch” of the defendant’s railroad; that George J. Lockie was the roadmaster under whom he worked and received his orders; that John Faust was a section-hand working under the plaintiff and subject to his orders. The — 320 — injury of which the plaintiff complains occurred on February 17, 1886, substantially as follows: The plaintiff and Faust were unloading five railroad rails from what the witnesses call a “push car,” and while unloading the last rail, the plaintiff holding one end and Faust the other, Faust threw, or in some manner let fall, his end while the plaintiff was holding his, and the plaintiff’s end struck him in the lower part of his abdomen and produced a rupture; and this is the injury of which he complains. The plaintiff testified that the handling of these rails was a part of his duties as section foreman; that he was required by the roadmaster, George J. Lockie, to perform all his duties as section foreman with only one assistant, to wit, Jóhn Faust; that one assistant only was not sufficient; and that the handling of these rails in the manner in which he was required to handle them was dangerous and hazardous. The roadmaster, however, George J. Lockie, who at the time of the trial resided in California, and whose deposition was read in evidence on the trial, testified among other things as follows: “While thus employed as such roadmaster I was acquainted with the plaintiff, Jacob Schroeder, who was a section-foreman under my orders, and in charge of section No. 4CX of said road, that being the first section north of the city of El Dorado. I never either ordered or requested Mr. Schroeder to change rails or to replace rails of said road with the help of only one man, b,ut on the contrary, whenever there was work of that kind to be done by him I sent him whatever assistance he required. During the years that I have mentioned, that is while I was in charge of the “ElDorado branch” as road-master, it was customary for us to reduce the section force during the fall and winter months, and at times Mr. Schroeder only had one man regularly with him on his section, but, as I have already stated, whenever it became necessary from any cause to remove or replace rails, he was furnished with sufficient help, either by hiring an additional force for the time being, or by sending him men from some of the other sections of the road to aid him in making such changes of rails as might be necessary. In fact, Mr. Schroeder and all the other section foremen of that branch had general standing orders and authority from me to call upon each other for assistance whenever such assistance was in their judgment necessary, for — 321 — the purpose of changing or replacing rails, or doing any other work that rendered necessary or proper more force than such foreman might have under his immediate charge.and direction at the time.” For the purposes of this case we shall take the evidence of the plaintiff as true; and under such evidence and the allegations of the plaintiff’s petition, can he recover in this action ? We would think not. The only allegation of negligence against the railroad company was that it failed and refused, notwithstanding the solicitations and protests of the plaintiff, to furnish him with sufficient help to perform his duties as section foreman. It is admitted and was shown that the plaintiff was an experienced railroad man, had worked at this same kind of business for many years, and knew all the risks and hazards of the business as well perhaps as any man could know the same. He was not employed for any particular length of time, and could have quit the defendant’s employment at any time without violating any contract, or without leaving any contract of his own unfulfilled; and, if his own evidence is true, the company did not agree to furnish him with any additional help, but, on the contrary, utterly refused; and he had no reason to expect or to hope for any additional help. If the evidence of the defendant is true, however, he could have had additional help whenever it was necessary by simply asking for it. We shall consider this case, however, upon the theory of the plaintiff, and that is, that he desired additional help; that additional help was necessary; that he asked for it; that the railroad company, through its roadmaster, refused to give him any, and threatened to discharge him if he could not perform his duties without additional help; and that the injury occurred because of a want of sufficient help. This is substantially what the plaintiff alleged in his petition, and what his testimony showed on the trial. His testimony shows that the order from the roadmaster to reduce his force to one man only besides himself was received by him on November 30, 1885, and his injury did not occur until February 17,1886. It was therefore not an order to perform — 322 — some duty on such short notice that he did not have a sufficient time for reflection or consideration before he encountered the danger. He protested against the order, according to his own testimony, but it was not revoked or modified, and he had no reason to believe or to hope that it would be revoked or modified. We think the principles discussed and decided in the case of Rush v. Mo. Pac. Rly. Co., 36 Kas. 129, et seq., are controlling in the present case. In that case an elaborate opinion was delivered, which see. In the case of Leary v. B. & A. Rld. Co., 139 Mass. 580, the following is decided: “If a servant, of full age and ordinary intelligence, upon being required by his master to perform other duties more dangerous and complicated than those embraced in his original hiring,, undertakes the same, knowing their dangérous character, although unwillingly and from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action against the master for such injury.” (Syllabus.) In the case of G. H. & S. A. Rly. Co. v. Drew, 59 Tex. 10,. the following is decided: “The master is not liable in damages for an injury to his employé which results from the use of defective machinery, if the employé has full notice of the defect and of danger which will attend continuing the employment. The simple protest by the employé against the use of the machinery, when directed to use it, will not vary the rule, if, when having knowledge of the risk, he obeys the order.” (Syllabus.) In the case of M. R. & L. E. Rld. Co. v. Barber, 5 Ohio St. 542, the following is decided: “It is the duty of a railway company to furnish the necessary and proper number of hands for the safe management of its trains; and for a delinquency in this particular the conductor of a train has a right to decline his charge, or refuse to-run the train. But where he takes the charge, and runs his train for a length of time without a sufficient number of hands, he voluntarily assumes the risk, and waives the obligation of the company in this respect as to himself, and if injured by means of such delinquency on the part of the company,, he is323 without a remedy against the company for damages.” (Syllabus.) Also, in the case of Woodley v. M. D. Rly. Co., 2 Exch. Div. L. R. 384, 389, the language of Chief Justice Cockburn is strong and to the point. Among other things he says: “ If a man chooses to accept the employment or to continue in it with a knowledge of the danger, he must abide the consequences so far as any claim to compensation against the employer is concerned.” In the case of Wormell v. M. C. Rld. Co., 79 Me. 397, 405, (same ease, 10 Atl. Rep., 49, 51, 52,) the following language is used: “ Every employer has the right to judge for himself in what manner he will carry on his business, as between himself and those whom he employs, and the servant having knowledge of the circumstances must judge for himself whether he will enter his service, or, having entered, whether he will remain. . . . But there are corresponding duties on the part of the servant; and it is held that the master is not liable to a servant who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom.” ■See, also, the cases cited in this last-cited case, and also the following cases: OruteJifteld v. E. ós D. Eld. Co., 78 N. C. 300; Stephenson v. Dimean, 73 Wis. 404; same ease, 41 N. W. Rep. 337; Smith v. W. & St. F. Eld. Co., 42 Minn. 87; same case, 41 Am. & Eng. Rid. Cases, 289) Me Glynn v. Brodie, 31 Cal. 376. Master and servant-dangerous employment -assumption of risk. After a careful consideration of all the cases, we must say that, while in our opinion it is the duty of an employer, whether a railroad company or other corporation or person, to make th e work of his or its employés as safe as it is reasonably practicable, yet when the employé, with ful knowledge or all the dangers incident to or connected with the employment as it is conducted, accepts the employment, or, having accepted the same, continues in it with such full knowledge, and without any promise on the part of the employer, or any reason to expect on the part — 324 — of the employe, that the employment will be made less dangerous, the employé assumes all the risks and hazards of the employment. It is also claimed by the plaintiff in error that the court below erred both ip the admission of evidence and in the exclusion of evidence; but with the views which we entertain concerning the matters already discussed, we think it is unnecessary to consider these other alleged errors. The judgment of the court below will be reversed, and the cause remanded for further proceedings. All the Justices concurring.