Tierney v. Minneapolis & St. Louis Railway Co.

Vanderburgh, J. It is admitted that the defendants jointly owned, maintained, and occupied a yard in common at Albert Lea, where trains were made up to be sent over their respective lines. The respondent had charge of the making up of night trains in the yard, and was injured in the course of his employment, while coupling cars, at about 3 o’clock in the morning of November 24, 18S2. A freight train had previously arrived from Minneapolis over the Minneapolis & St. Louis road, including, with others, a box car loaded with flour at that place and bound east. On its arrival it became plaintiff’s duty, according to the usual course of business, to obtain a list of the cars and their destination, so that he might proceed to make the necessary transfers in making up the outgoing trains. It was the duty of the ear inspectors, two of whom were employed for night service, to inspect all ears in trains on their arrival. The plaintiff had been in the employ of defendants a little more than two weeks, and must have been familiar with the manner in which the business was carried on in the yard. On the night in question, about half an hour after the arrival of the train mentioned, the plaintiff, who had been switching and distributing cars, brought an unloaded flat ear from the wood track to the main track, upon which the box car we have referred to still stood, and undertook to couple them. His evidence tends to show that as he went to make the coupling, and while the ears wore coming together in the usual way, the draw-bar of the flat car struck and overrode the draw-bar of the box car, which appeared to be loose and insecurely supported, and dropped down when struck by the approaching car, thus permitting the two cars to come together and in — 313 — tercept the plaintiff, and resulting in his being run over upon the track, and in causing the loss of a leg, which was necessarily amputated above the knee. 1. While it may be conceded, for the purposes of this case, that from the circumstances and nature of plaintiff’s employment, in which -cars from many roads were brought together with coupling attachments of different heights and patterns, he would assume the ordinary risks of the service from such causes, we think, upon the evidence, the question was fairly for the jury whether the accident oc-■ciirred from such causes, or from the fact that the draw-bar of the box car was insecurely supported and in an unsafe condition, from neglect to repair the same. Upon this issue the evidence in plaintiff’s behalf, among other things, also tended to show that the strap or ■carrying-iron which supported the draw-bar was worn, weak, and loose, and that some of the bolts which were intended to keep this iron strap in place were loose or broken, that it had been out of repair for a considerable time, and the defects were such as could readily be discovered by proper inspection. 2. The evidence of the defective condition of the car, which appears to have been previously in the possession of one of the defendants, the Minneapolis & St. Louis Company, at Minneapolis and during its transit to Albert Lea, a distance of 108 miles, was received and submitted to the jury without any objection or suggestion that the liability did not attach equally to both defendants for any negligence in respect to this car prior to its arrival at Albert Lea. This point is how suggested for the first time; but we think, under the circum■stances, the attention of the court should have been called to this matter when the evidence was received, or when the jury were instructed. As the case stands, since we think there was evidence for the jury tending to show a joint liability for negligence in the yard at Albert Lea, it is too late to raise the question in this court as’to the competency or sufficiency of the evidence of previous negligence to charge the defendants. 3. Evidence was received, under the defendants’ exception, showing a regulation of defendants in relation to the inspection of cars, un der which it became the duty of the car inspectors, if any were found — 314 — defective or in need of repairs, to mark them so as to indicate that they were in bad order, and hence not to be sent out, but to be sent-to the repair track. We think this evidence was properly received upon the question of defendants’ liability, for if the car in question was defective and unsafe, which, as we have seen, was for the jury, then such regulation was binding upon the inspectors as representing the defendants for the protection of employes in the yard, unless it should appear that it was one of the risks of the service assumed by them to handle cars there without regard to inspection, or their condition, or any notice thereof. It may have been a question for the jury, under proper instructions, to determine whether or not, from the' nature of the service in which the plaintiff was employed, he was required to proceed to switch cars and make up trains without regard to inspection, and without waiting for it; but instructions of this character were not asked or given, and the evidence does not show that such risk necessarily attached to the plaintiff’s business, and was hence assumed by him. The position taken by defendants’ counsel at the trial appears to have been that the plaintiff did not give the inspectors the necessary time to complete their work; and the case was submitted to the jury under instructions, given at defendants’ request, that “if he did not do so,” or “if he did not know or have reason to believe that all the-cars in said train were inspected before he caused them to be moved, he cannot recover.” This question was determined by the jury in plaintiff’s favor upon the evidence. As before remarked, it was the duty of the inspectors to examine cars immediately upon their arrival, and the evidence tends to prove that it was their practice to so inspect them upon the track before-their removal. The inspection of this train was, in fact, so made on the night in question. There is some conflict in the testimony as to-the length of time it would take to properly inspect such a train of cars, and it does not clearly appear how much time had elapsed before the injury; the plaintiff’s recollection being that it was from 25-to 40 minutes. But it appears that the inspectors had, in fact, completed their work before the accident. The negligence of the inspectors was therefore proper to be considered upon the question of the¡ — 315 — defendants’ liability. If it is the duty of the corporation to exercise reasonable diligence to supply suitable and safe instrumentalities for the use of its servants to work with, it is also its duty to use like diligence to keep the same in proper repair. This necessarily involves inspection and examination as incident to the obligation to repair, and, as a corporation must necessarily act through agents, the negligence of its employes in the discharge of such duty is attributable to the corporation. Solomon R. Co. v. Jones, 30 Kan. 601; Atchison, etc., R. Co. v. Holt, 29 Kan. 149; Brann v. C., R. I. & P. R. Co., 53 Iowa, 595; Porter v. Hannibal d St. J. R. Co., 71 Mo. 66, 77, 78; Chic. & N. W. Ry. Co. v. Jackson, 55 Ill. 492; Condon v. Missouri Pacific Ry. Co., 78 Mo. 567; Crispin v. Babbitt, 81 N. Y. 516; Fuller v. Jewett, 80 N. Y. 46, 52; Kirkpatrick v. N. Y. C., etc., R. Co., 79 N. Y. 240; Slater v. Jewett, 85 N. Y. 61, 70; Durkin v. Sharp, 88 N. Y. 227; Murphy v. Boston & A. R. Co., Id. 146, 152; Dana v. N. Y. C., etc., R. Co., 92 N. Y. 639; Vosburgh v. L. S. & M. S. R. Co., 94 N. Y. 374; Kain v. Smith, 25 Hun, 146; Wedgwood v. Chic. & N. W. Ry. Co., 41 Wis. 478, 483; S. C. 44 Wis. 44, 48, 49; Smith v. Chic., etc., Ry. Co., 42 Wis. 520, 526; Richardson v. Great Eastern Ry. Co., L. R. 1 C. P. Div. 342. In Fuller v. Jewett, supra, it is said by the court, (p. 53 :) “The duty of maintaining machinery in repair for the protection and safety of employes is the same in kind as the duty of furnishing a safe and proper machine in the first instance;” and “in respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury.” This corresponds to the language of the same court (Church, C. J.) in Flike v. Boston d A. R. Co., 53 N. Y. 549, 553, and (Folger, C. J.) in Slater v. Jewett, 85 N. Y. 61, 70. Substantially the same doctrine is adopted by this court in Drymala v. Thompson, 26 Minn. 40, and we think that case must control the disposition of the question under consideration. In some states the courts hold that this rule is not applicable to subordinate employes, as in the case of ordinary car inspectors at the transfer yards, but that the latter are to be deemed fellow-servants of other employes injured through their negligence. Railroad Cos. v. Webb, 12 Ohio St. — 316 — 475, 494; Little Miami R. R. v. Fitzpatrick, 42 Ohio St. 318; Smoot v. Mobile & M. Ry. Co., 67 Ala. 13. The rule adopted in these and other cases is followed in Smith v. Flint & P. M. Ry. Co., 46 Mich. 258; Mackin v. Boston & A. R. Co., 135 Mass. 201, as applied to foreign cars in transit, which a railway company is obliged by law to draw over its line. In the case last cited the court say by way of explanation, (p. 206:) “However it may be as to other cars, the inspectors must be deemed to be engaged in a common employment as to such ears while in transit, and until ready to be inspected for a new service.” One reason given is that the company was not obliged to repair such cars. That question we need not consider in this case. This car was loaded at the terminus of the line, and by defendants’ own regulations was required to be inspected, and, if damaged, to be properly marked to indicate that fact, at its general yard at Albert Lea, by the agents of the defendants appointed for such purpose. It is difficult to lay down a general rule which will be applicable in practice, and define accurately the limits of the master’s liability in this class of cases. But if the special duty and responsibility belong to the car inspector to examine and determine whether a car is unfit for service, and shall be so marked and sent to the repair track or shop, it is difficult to discover any distinction in kind between his duty and that of the mechanics who make the repairs. It will also be borne in mind that the measure of liability on the part of the company is reasonable care, which must be determined by the circumstances in each case. Experience in the competent and practical management of railroads will naturally determine the nature and frequency of inspections which ordinary care would require should be made between the intervals of the more minute examinations at the general repair-shops. But the general examinations which experience has shown practicable and necessary to be made of cars at the yards designated for such purpose, without causing undue delay while in the course of transportation, would at least include such patent defects as would be readily discoverable upon inspection by a competent person in the exercise of reasonable care. Richardson v. Great Eastern Ry. Co., supra. In respect to patent defects in. the coupling apparatus, brakes, — 317 — wheels, etc., we may assume that the defendants had undertaken the duty of inspection, and intrusted it to the proper agents. As a rule, also, there is a distinction between the special duties of such persons and the service of other employes who are engaged in handling cars and operating trains. It is not the same in kind as that of the switch-man, brakeman, or other operative. Wedgwood v. Chic, & N. W. Ry. Co., 44 Wis. 44; Schultz v. Chic., etc., Ry. Co., 48 Wis. 375. The service of the former class relates wholly to the matter of the care and repair of machinery, the use of which is attended with constant danger to other employes unless maintained in a safe condition; and they represent the master, not in the capacity of superior officers placed over other employes, but because performing the master’s duty in respect to safe instrumentalities. Placing and keeping such machinery upon the road in actual use would be an assurance to ordinary servants that the same is fit and safe, in so far as the exercise of reasonable diligence could make it. Murphy v. Boston & A.B. Co., 88 N. Y. 146, 152. So, in the matter of separating damaged ears from those remaining in use with a view to repairs, the cases proceed upon the principle that enough must have been done by the master to indicate, in conformity with some proper regulation or usage of the company, the condition or character of such cars, for the protection of employes who are to handle them. Flannagan v. Chic. & N. W. Ry. Co., 50 Wis. 461, 471; Watson v. H. & T. C. Ry. Co., 58 Tex. 434; Fraker v. St. P., M. & M. Ry. Co., 32 Minn. 54. And the rule that the corporation is bound to know the defective condition of its ears within a reasonable time, is in harmony with the doctrine that the agents charged with a special duty of looking after and repairing its cars and machinery, pro hac vice represent the master. As before stated, this case does not, we think, differ in principle from Drymala v. Thompson, supra. There the negligence of the section foreman engaged in repairing the track, who would have otherwise been deemed a fellow-servant with the injured party, was held to be that of the defendants, and it would have constituted no defence that the company had employed competent men, adopted proper regulations, or provided suitable materials, and an adequate system for supervising and repairing its track. On the other hand, in Brown v. — 318 — Winona & St. P. R. Co., 27 Minn. 162, a road7master, engaged with the injured party in operating machinery, was held not to represent the company. It is the kind of service, not the grade, which distinguishes these two cases. The one related to maintaining safe instru-mentalities; the other, to the use of them. The application of the rule, as well as the question of the degree of risk assumed by employes, will, of course, be largely influenced by the special circumstances of any particular case. And so, as to different kinds of business, the amount of care required, and the system to be adopted and carried out, are to be determined by the circumstances of each case, depending upon the nature of employment, the extent, hazard, and usages of the business, the kind of machinery used, and the risks incident thereto. Kain v. Smith, 25 Hun, 146. 4. A witness acquainted with plaintiff’s physical condition, though not a physician, was permitted to testify, against the objection of the defendants, to the state of plaintiff’s health before and after the accident, and, among other things, that he had since had a skin disease. As he merely stated facts within his observation, and expressed no opinion, the evidence was competent. 5. The application for a new trial on the ground of misconduct of the jury was made upon affidavits which are met by counter-affidavits, and was thus determined upon conflicting evidence. It also appears that some of the affidavits on plaintiff’s part are not returned to this court. We see no reason, therefore, for questioning the correctness of the decision of the trial court on this point. Peterson v. Faust, 30 Minn. 22. So, also, as respects the damages, which are claimed to be excessive; the question was within the province of the jury to determine; and considering the nature of the injury, the age of the plaintiff, extent of his disability and suffering, we are unable to say that the trial court erred in refusing to set aside the verdict for such cause. Order affirmed.