Dixon v. Chicago & Alton Railroad

Barclay, J. Plaintiff, as the widow of. the deceased, Mr. Dixon, sues under the damage act IR. S. 1889, ch. 49), claiming the statutory recovery — 420 — for Ms death, caused, as is charged, by negligence in the operation of one of defendant’s passenger trains. The deceased was a quarry laborer, under orders of a foreman who had entire control of the quarry, represented the defendant there, hired, discharged and directed the men, and had no connection with the train service, so far as appears, in any way. The first decisive question is,. whether deceased and the passenger trainmen are to be regarded as fellow-servants, within the meaning of the rule exempting the master from liability for injuries negligently inflicted upon one employe by another in a common employment. This rule has long been acknowledged as part of the general common law, but efforts to apply it in particular cases have lead to expressions of wholly irreconcilable views among eminent jurists. These differences seem to spring from the difficulty experienced in assigning the reasons for the rule itself to serve as solid premises in applying it. “Public policy” (McDermott v. Railroad (1860), 30 Mo. 116), “implied contract” (Hutchinson v. Railroad (1850), 5 Exch. 343; Lovell v. Howell (1876), 1 C. P. Div. 161), “general convenience” and “expediency” (Farwell v. Railroad (1842), 4 Metc. (Mass.) 49) have been severally mentioned and enlarged upon by learned judges as grounds on which it should stand; but, whatever strength those grounds may have, a stronger reason for its existence to-day is stare .decisis, itself, however, a maxim of cogent force in determining judicial action in countries tracing their systems of law to the English source. The doctrine of exemption is of comparatively recent origin. Its history has been frequently written, and is too familiar to the legal profession to justify repetition here. It sprang into life suddenly, with remarkable vitality and power, and, as originally form — 421 — ulated, was supposed to control many states of facts to which it would not now be applied anywhere. It was at first thought to exempt the master from liability for injury to one servant by reason of the neglect of another to furnish or maintain a reasonably safe plant and machinery for the master’s work, of whose defects the injured servant was ignorant (Waller v. (Railroad (1863), 2 Hurl. & C. 102; McDermott v. Railroad (1860), 30 Mo. 115); but such an application of it is now universally discarded, either because of statutory declarations on the subject (for example, the “Gladstone Bill,” in England, 43 & 44 Vict. (1880), ch. 42, sec. 1; Mass. Act (1887), ch. 270, etc.), or of decisions by the courts without the aid of legislation. Lewis v. Railroad (1875), 59 Mo. 495; King v. Railroad (1882), 14 Fed. Rep. 277; Railroad v. Herbert (1886), 116 U. S. 642; 6 Sup. Ct. Rep. 590. Again, the scope of the rule was long supposed to relieve the master of responsibility for negligence of a servant under whose direction another was working, and by whose neglect the latter was injured, though the negligence of the former may have involved the exercise of the supervising control delegated to the superior servant. Albro v. Canal Co. (1850), 6 Cush. 75, and Howells v. Steel Co. (1874), 32 L. T. (N. S.) 19, will illustrate that line of decisions sufficiently. And, although that view is still approved in some quarters, the weight of authority at this time in this country is to the contrary. Pantzar v. Mining Co. (1885), 99 N. Y. 368; Railroad v. Bowler (1872), 9 Heisk. 866; Darrigan v. Railroad (1884), 52 Conn. 285; Railroad v. Ross (1884), 112 U. S. 377; 5 Sup. Ct. Rep. 184; Moore v. Railroad (1885), 85 Mo. 588. But the demands of the case at bar do not make it necessary to enter upon any general discussion of the changes that have taken place in the law on this topic — 422 — since it began to engage the attention of the courts. Suffice it, for the present, to say that maturer consideration by the judiciary, and the emphatic commands of legislation in some localities, have greatly modified the rigor and narrowed the rule of exemption as originally put forth. [Besides the statutes already mentioned, note Alabama Acts, 1885, p. 115, also Code, 1886, sec. 2590; Florida Laws, 1887, ch. 3741; Georgia Acts, 1885, p. 115, also Code, 1873, see. 3036; Iowa Laws, 1862, ch. 169, also Code, 1880, sec. 1307; Kansas Laws, 1874, ch. 93; Minnesota Laws, 1887, ch. 13; Mississippi Code, 1880, sec. 1054, p. 309, and Constitution, 1890, sec. 193; Montana R. S. 1879, sec. 318, p. 471; Texas Laws, 1891, ch. 24; Wisconsin Acts, 1889, ch. 438; Wyoming Laws, 1876, sec. 1, ch. 97.] These modifications no doubt conform to more humane conceptions, now prevailing, of the demands of justice with regard to the existing relations of master and servant. To-day some enterprises reach across a continent. Often they extend beyond the limits of a single state. Many contemplate the performance of several kinds of business, requiring the employment of thousands, and the organization of several departments of service, separate in their operations, but tending to the general advantage of the common employer. To what extent employes in different lines or departments of business followed or established by such a master are co-servánts is a question constantly recurring, and one of its phases is presented by this case. The circuit court held that the deceased and the trainmen were fellow-servants. In reviewing that ruling we, will not essay to establish any definition of-fellow-service to enlighten (or increase) the difficulties — 423 — of this branch of the law, but shall merely deal with the facts before us as shortly as possible. We think it clear that where a common employer carries on two enterprises, as variant in character as those here considered, each under separate superintendence, the employes at work in each cannot justly be regarded as fellow-servants of the employes in the other, within the meaning of the rule of exemption. In the case in hand the master had seen fit to place the deceased quarryman and the trainmen under supervision and management totally apart from each other. They were not ‘ ‘acting under the same immediate direction.” Railroad v. Mackey (1887), 127 U. S. 208; 8 Sup. Ct. Rep. 1161. Each looked to a different individual as the master’s representative for directions in his work, and had no practical connection with the superior who guided and supervised the acts and conduct of the other. If Dixon, instead of being killed, had merely noticed repeated acts of negligence by the trainmen in omitting to signal its approach, what could he have done to correct such course of conduct, and insure his own safety? Complain to his foreman? Thé foreman directing his work had no power to discharge or to control the trainmen referred to. The theory that a servant entering employment may fairly be considered to assume the risks (among others) of possible injury from the negligence of his fellow-workmen (now most frequently mentioned as the groundwork of the exemption) can have no just or logical application where the supposed fellow-servants are so widely severed by the division of the employer’s business that neither can have.a ready appeal to any common superior, having power to require (and, if need be, to enforce) correct and careful conduct on the part of the other. Such an appeal furnishes to the servant the means to avert, — 424 — or at least to diminish, the dangers arising from incompetency or carelessness on the part of his fellows. But when that appeal is impossible, by reason of the total severance of their fields of labor and. of the control to which they severally are subject, we apprehend there is little left of recognizable principle upon which servants so situated can be supposed to have mutually assumed the risks of each other’s negligence. Workmen so distantly related to each other in the master’s service as the quarrymen and the train operatives here are scarcely more nearly allied, for all practical purposes of mutual observation, vigilance and protection, than are the servants of different independent contractors, engaged in separate branches of labor upon a common enterprise (though we do not mean to imply that the legal relations between them are identical) . Employes of the latter class are universally held not fellow-servants within the rule under discussion. Abraham v. Reynolds (1860), 5 Hurl. & N. 142; Turner v. Railroad (1875), 33 L. T. (N. S.) 431; Johnson v. Lindsay (1891), 16 App. Cas. 371; Svenson v. Steamship Co. (1874), 57 N. Y. 108; Railroad v. Conroy (1886), 63 Miss. 562. ' Quarrying and operating passenger trains upon a railway are essentially different sorts of work. The risks incident to each are unlike those encountered' in the other. Nor were the operatives in these departments thrown into any sort of habitual business association under a common superior. Each line of service appears to have been conducted as independently, in every respect, as though controlled by a stranger to the other, with this exception: The servants in each employment drew compensation from the same source. But we do not regard that fact (standing alone) as furnishing the touchstone of fellow-service. — 425 — Without going further, however, into the general subject, or attempting to express an opinion on any other facts than those here in judgment, we believe the considerations above suggested (in the light of recent decisions in this state and elsewhere) lead directly to the conclusion that the trial court was in error in ruling, as a matter of law, that deceased was a fellow-servant with the engineer of the train that struck him. In the following cases, the rule of exemption from liability, because of the relation offellow-service, was held inapplicable. Sullivan v. Railroad (1889), 97 Mo. 113; 10 S. W. Rep. 852, where a track-walker was killed by the negligence of train operatives. In Connolly v. Davidson (1870), 15 Minn. 519 (Gril. 428), a deckhand on a steamboat was hurt by an explosion, caused by the negligent management of the boiler of another boat; the boat-owners being partners. Railroad v. Carroll (1871), 6 Heisk. 347, presents the case of an injury to a trackman by the negligence of trainmen. In Baird v. Pettit (1872), 70 Pa. St. 477, a draughtsman in an establishment for the manufacture of locomotives sustained injuries by falling into an unguarded excavation, made on' the premises by carpenters in defendant’s employ. In Pool v. Railroad (1881), 53 Wis. 657; 11 N. W. Rep. 15, a detective, while riding on a handcar, was injured by negligence of the servants operating the car. Garrahy v. Railroad (1885), 25 Fed. Rep. 258, arose in Kansas City, Missouri, as the record therein shows (though the printed report does not), and was decided by the late Mr. Justice Milled. The plaintiff, .a common laborer, one of a gang distributing rails along the track, was hurt by the negligence of the — 426 — operatives of a switch-engine, used in the railway yard where plaintiff was working, and a recovery by plaintiff was sustained. Hobson v. Railroad (1886), 11 Pac. Rep. (Ariz.) 545, was the case of a teamster, hired to haul ties, who was injured by the negligence of an engine-driver of a. train. In Railroad v. O’Brien (1889), 1 Wash. St. 599; 21 Pac. Bep. 32, a track laborer, while being carried on a gravel train to his place for work, was injured by a collision with another train, resulting from the neglect of the operatives of the latter to “flag” the former, as-ordered. In Railroad v. Kelly (1889), 127 Ill. 637; 21 N. E.. Rep. 203, a section hand had sustained damages from the negligent action of employes upon a construction train. In Howard v. Canal Co. (1889), 40 Fed. Rep. 195,. which arose in Vermont, a trackman on a handcar was-killed by the carelessness of train hands. Pike v. Railroad (1890), 41 Fed. Rep. 95, is a. Missouri case, decided by Judge Thayer, whose learning and long experience in the administration of law in this state entitle his opinions to great weight. In it he' held that a watchman of a railroad bridge, who was hurt by negligence of the driver of a locomotive of a. passing train, was not a fellow-servant of the latter. In JEvans v. Coal Co. (1891), 47 Fed. Bep. 437, in Washington, a laborer employed by defendant in the work of constructing a railway to haul coal from a mine received an injury by reason of the negligence of one of defendant’s miners, engaged in the same locality, in handling lumber. II. Whether the quarryman (Dixon) was properly chargeable with contributory negligence in the premises,, is the next question raised on this appeal. — 427 — The court is authorized to pronounce certain conduct negligent only when no other construction may fairly and reasonably be placed upon it in the circumstances ; but where the facts are such as would warrant a reasonable inference that ordinary care has been taken by the person in question, the issue, whether or not such care was really exercised by him, is for triers of the fact to decide. The rule on this point has been so often stated that it is not necessary to dwell upon it. Dixon’s general duties have been already indicated. The following further facts, bearing on the particular issue now under consideration, should be noted: Defendant’s foreman testified that Dixon, in the performance of his work, “would stand about the center of the main track on the east side of the strap-track, with his back to the east, facing the west;” that, as he “was right-handed, it came handier to him to stand in the center of the main track, on the east side of the strap track, in detaching the cable;” that he had had but one other man besides Dixon at that post, and they both handled the cable in the same way; that it was the duty of Dixon to keep the cable off: the main track when it was not attached to a car; and that, when running regularly, “those cars go up and down between the quarry and crusher about every-three minutes.” He also said that the steam crusher, while at work, made considerable noise as the rock passed through it. It was running that morning. He was on top of the quarry when the accident happened, one hundred and fifty feet from the turntable. He did not hear the train that hit Dixon. Another employe, standing within thirteen or fourteen feet of the track, and forty or fifty feet from Dixon, did not hear the train till it was passing him. Dixon was last seen by this witness, about the center — 428 — of the main track, at the junction with the strap track, facing toward- the northwest, looking down. When struck, he was in the act of stooping, and seemed to be reaching for the cable. Prom the point where Dixon then was, an engine could ordinarily be seen, by one looking eastward, for a distance of one thousand and thirty-five feet; but, from the crossing track, near the turntable, the range of view in that direction was reduced by intervening objects to two hundred and fifty or three hundred feet. It also appeared in evidence that the atmosphere was “ right smart” foggy that morning. Can it be justly said, in view of these facts, that the deceased was negligent as a matter of law? The noise of the steam rock crusher, not fifty feet distant, obscured, if it did not obliterate, that of the coming train,- as is shown by the fact that even the foremen and the workman nearest Dixon did not hear its approach. The work at which Dixon was engaged demanded close attention, and necessitated his frequently taking a position in which his back was towards the engine that hit him. Prom the main track at the strap-track crossing, the locomotive (at the rate of speed it had) could not have been seen thirty seconds before it passed there; and, from points nearer the turntable, where Dixon’s duties required him frequently to go, it co.uld not have been discovered within' seven seconds of its arrival, because of obstacles reducing the range of view eastward. He was bound to use common prudence to avoid danger; but that prudence should be measured after giving due weight to all his surroundings. His immediate work involved some risks of its own, and called for constant vigilance; and, without further comment, we hold that the question whether or not he came up — 429 — to the standard of ordinary care in the circumstances of his situation is very clearly one for the jury. This branch of the case, moreover, seems to have given no difficulty in the trial court. The learned circuit judge evidently coincided with the views we have taken of it. The result there was definitely placed by him on the single ground that the deceased was a fellow-servant of the train employes. III. There was .abundant direct evidence of the omission of the engine men to sound the whistle signal as the train came around this obscure curve. Defendant’s rule and custom required such a signal, and tire failure to give it was evidence of negligence on defendant’s part in managing the locomotive. If that omission should be found, as a fact, to have caused the death of Dixon, we cannot properly say that such finding would be an unreasonable inference from the evidence. We consider the showing by the plaintiff sufficient to justify the submission of the cause to the jury for findings upon the disputed issues of fact raised by the pleadings, and that the trial court was in error in directing a verdict for the defendant. The judgment will be reversed, and the cause remanded. Black and Brace, JJ., concur. Sherwood, 0. J., dissents. on rehearing in banc.