Benson v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

BEOWN, J. Appeal from an order directing judgment for defendant notwithstanding the verdict of the jury. The action is one to recover damages for injuries to the person of plaintiff, caused, as he alleges, by the negligence of the defendant. There is no dispute or controversy as to the important or main facts. The complaint alleges, and the evidence shows (omitting all matters not material to the questions presented) as follows: In the summer of 1897 the defendant was engaged in repairing and resurfacing its track between the stations of Altoona and Elroy, in the state of Wisconsin, in and about which it employed a large number [306] of laborers, including this plaintiff. More conveniently to carry on the work, it kept and maintained on a side track, near where the repairs were being made, a number of cars in which to board and lodge the men. The defendant did not undertake to board or lodge the men, but furnished such cars for that purpose. As the work progressed, the men became further removed from the boarding cars, and for their convenience the defendant furnished and permitted them to use hand cars on which to transport themselves to and from this work. The defendant did not .attempt to operate the hand cars, nor did it put any one in charge thereof. They were furnished for the use of the men, every one of whom had as much control and was as much in charge thereof as his fellow laborer. On the day in question the plaintiff was upon one of such cars, returning from his work to the boarding cars for dinner, when an approaching car overto'ok and collided with the car on which he was so riding, thereby throwing him from the same and inflicting the injury complained of. The action is based on a Wisconsin statute which provides that any railroad company operating a line of railroad wholly or in part in that state shall be liable for damages sustained within the state by an employee of such company who is free from contributory negligence. Laws (Wis.) 1893, c. 220. In order to warrant a recovery under the law, it must be shown, among other things, that the employee was not guilty of contributory negligence, that he was injured while engaged in the performance of his duties, and that the injury was caused by the negligence of another employee while engaged in the discharge of, or for failure to discharge, his duties as such. At the conclusion of the trial in the court below, both parties requested the court for a directed verdict. The court refused both requests, submitted the case to the jury, and a verdict was returned for plaintiff. Thereafter, on defendant’s motion, the court ordered judgment for defendant notwithstanding the verdict. The appeal is from that order. The only question presented for decision is whether the employees in charge of this particular piece of work were, at the time plaintiff [307] received his injury, engaged in the “discharge of their duties as such,” or in the line of their employment. If they were, the order appealed from should be reversed. If they were not then engaged in the discharge of their duties as such employees, the order appealed from should be affirmed. The work for which they were employed, and in which they were engaged, was that of repairing and resurfacing defendant’s track. At the time of the accident resulting in plaintiff’s injury, they had ceased this work, and were on the way to the boarding cars for their dinner. So far as the evidence discloses, the defendant was not boarding the men. Plaintiff does not claim that it was. Nor had the company in any manner agreed or undertaken to transport or carry them to or from their work, on hand cars or otherwise; nor was it shown that it was defendant’s custom to do so. The hand cars were furnished the men at their own request, for their own convenience, and the operation thereof was in no way under the charge or control of the defendant. The men themselves had full charge and control of such cars, and used them as they saw fit, not in the performance of any duty to defendant, nor in furtherance of defendant’s work, but for their own comfort in going to and returning from their work. The cars were not defective, nor was the roadbed out of order. In the view we take of the case, it is not important that the men were transporting themselves from the point where the work was being done to the boarding cars, on hand cars furnished them by defendant. Their relation to the defendant, with respect to the question whether they were at the time in the discharge of their duties, is precisely the same as it would have been had they been going to the boarding cars in lumber wagons furnished by defendant under like circumstances, or had been going afoot. They would be as much in the discharge of their duties to defendant in the one case as in the other. If the statute in question can be construed to apply to a case of this kind, we are at a loss to know when the relation of master and servant ceases, so that the negligence of one servant towards a fellow servant will not render the master liable, or when [308] or under what circumstances or conditions it may be said that the servant is not engaged in the duties of his employment. We hold that the facts of this case do not bring it within the statute of Wisconsin above cited, and that during the journey to the boarding cars the employees were not, within its purpose and meaning, engaged in the discharge of their duties as -such. They had ceased work, were not at the time subject to the orders or under the control of defendant, and, as between themselves at least, did not sustain the relation of servants of defendant engaged in the discharge of their duties. Whatever may be said of the rights of employees, similarly situated, with respect to the liability of the company for injuries negligently caused them by other employees who are at the time engaged in the actual work of their employment, it is clear that, as between themselves, and as to injuries caused by one to the other, they do not stand in the relation of employees engaged in the discharge of their duties. The learned counsel for appellant cites no ease in point. In Rosenbaum v. St. Paul & D. R. Co., 38 Minn. 173, 36 N. W. 447, the plaintiff was a laborer riding on a construction train operated by, and under the control and management of, the company, and used expressly for the purpose of carrying laborers to and from their work, and was injured by reason of a defective track. The hand cars used by plaintiff and his fellow workmen were not operated or controlled by defendant, nor was its road defective. In Ewald v. Chicago, 70 Wis. 420, 36 N. W. 12, and 591, the plaintiff, who was employed in defendant’s roundhouse as a wiper, was injured while in defendant’s yard, on.his way to work, by the negligence of switch-men in the actual and active discharge of their duties, and not, as in this case, by the negligence of an employee, who had ceased the actual discharge of his duties, and was going from his work to his boarding house. The other cases cited are similar. In all of them there was shown either a positive act of negligence on the part of defendant, or an act of negligence on the part of employees while in the actual discharge of their duties and work. No case is cited where the injury was caused by the negligent act of an employee committed after he had ceased the actual discharge of his duties, [309] and was on his way to his home in company with the employee who was injured. Order affirmed.