Owens v. San Pedro, L. A. & S. L. R.

RITCHIE, District Judge (after stating the facts). The reasons urged by appellant for a reversal of the judgment are substantially two: (1) The injury was caused by an accident resulting from Barrett’s negligence, and he was a representative of the master, and not a fellow servant. (2) The court in directing a verdict failed to specify the particular grounds that would justify such action. The accident which caused appellant’s injury occurred in the state of Nevada, and the fact is stipulated in the record [213] tbat there is no statute in Nevada defining any doctrine relating to fellow servants, and that the common law prevailed in that state at the time of this accident. The appellant-rests his claim for right to recover on the doctrine which i» commonly .called, somewhat vaguely, the “superior-servant dotrine.” Several Utah cases are cited in the appellant’s discussion of the matter in his brief. It is not necessary to determine whether this rule was ever established in this state independent of statutory provisions. The relations between master and servant are now defined in large measure by statute, and the question is of consequence only when matters arise for investigation which have occurred in other states and are therefore to be interpreted by the laws of such states. Unfortunately there is neither statute nor judicial decision in the state of Nevada which aids the court in ascertaining what the law of that state is,' except the statutory provision that the common law is in force. Considering, however, that the question is one of difficulty, obscured by contradictory decisions in different jurisdictions, and bearing in mind, also, that the. superior-servant doctrine has not been accurately defined in any formula, which has been generally accepted in all the jurisdictions upholding it, this court should not undertake to determine whether it is or is not a part of the law of the state of Nevada, unless it is essential to a decision in this ease. We do not think it is essential. The plaintiff and the other workmen on the morning in question were engaged in their ordinary work. The matter of going to and from the camp to the place of work and transporting the materials was as much a part of their work as actually laying timbers on the bridge. The plaintiff was fifty-two years old, and, so far as the evidence shows, a carpenter of no' less experience than his fellow workmen, including the foreman. So far as the exercise of judgment or prudence in pursuing their work depended upon their experience in the ordinary affairs of life outside of their skill as carpenters, they were on a common level, and there is nothing showing that the foreman had any greater experience than the others upon which he might have founded a better [214] judgment. The unusual things occurring that morning, which in part contributed to the accident, were the grade was steeper than usual, a train had passed before them and taken the frost off the rails, and the running gear of the car had been freshly greased. Each workman could judge of these matters and consider what would be wise and prudent in managing the car as well as the foreman, and these facts did not place upon him as the representative of the company any additional responsibility. There was nothing about the situation as thus presented which was not perfectly open and obvious to all the workmen. The risks and dangers, such as they were, were incident to the manner of conducting their work, and were a part of the ordinary risks of their employment assumed by them. The following cases, selected from among a large number involving somewhat similar circumstances, illustrate the principles involved: Northern Pac. R. R. v. Peterson, 162 U. S. 348, 16 Sup. Ct. 843, 40 L. Ed. 994; Hofnagle v. N. Y. Cent. R. R., 55 N. Y. 608; Callan v. Bull, 113 Cal. 593, 45 Pac. 1017; Cates v. Itner, 104 Ga. 679, 30 S. E. 884; Andre v. Winslow Elevator Co., 117 Mich. 560, 76 N. W. 86; McLaughlin v. Camden Iron Works, 60 N. J. Law, 557, 38 Atl. 677; Hughes v. Leonard, 199 Pa. 123, 48 Atl. 862. We must conclude that there was no act of the foreman which would charge the defendant with negligence. Reversal of the ca.se is asked also because the defendant did not specify why a. verdict should be directed, and because the court did not give its reasons for directing a verdict for the defendant. We see no reason for extending the rule requiring that a motion for a nonsuit should be based upon specific reasons to include a motion to direct a verdict. 4. trial court, when asked to direct a verdict, may require the moving party to state his reasons if the circumstances of the particular case require it; but there is no merit in the proposition that the court should be required to specify its reasons for directing a verdict. It is true, as appellant asserts in his brief, that courts sit to administer justice, not to take advantage of an oversight or inadvertence of a litigant or his [215] counsel. Tbe fundamental principles guiding tbe courts in judicial proceedings require that tbe courts take due care to see that justice is done; but we cannot see that tbe recognition of this duty demands tbe establishing of tbe rule contended for. Trial courts will no doubt, according to tbe circumstances of each case, so far as within their power, see that substantial justice is done, and such a rule is not needed to aid them in that regard. Tbe only eases cited in support of tbe defendant’s position are from Michigan, and further research has failed to discover others elsewhere. The later decisions in Michigan qualify the rule previously made in that state by declaring that, where a “proper result has been arrived at,” the action of the trial court will not be reversed for granting a motion to direct a verdict in the absence of a. specification of reasons. The judgment of the court below is affirmed, with costs. ' McCARTY, C. J., and ERICK, I., concur.