Farber v. St. Louis National Stock Yards

Mr. Justice Duncan delivered the opinion of the court. The real question on this appeal, and about the only one argued by the attorneys, is whether or not Gorman and the plaintiff were fellow-servants at the time of Gorman’s acts of negligence which caused the plaintiff’s injury. It is the opinion of this court that Gorman was foreman or vice principal of the defend- . ant in the work of repairing the car in question, and was empowered by it to direct and control the plaintiff in that particular work as charged in the declaration; and it is also our opinion that Gorman promised the plaintiff to keep a lookout while the plaintiff was working on the car, and guard him against the danger of cars being switched against the one on which he was at work and neglected to keep his promise. The last two questions are very strongly contested by the parties hereto; but under the evidence on each question, we are not able to say that such a finding as was evidently made in the lower court is manifestly against the weight of the evidence. It will not be necessary to discuss the evidence on these two propositions or to show how we reach our conclusions thereon, as we simply state our findings that we may be clearly understood in our decision of this case. It is now clear that the decision of this case must turn solely on the question of whether or not Gorman was doing the work of a fellow-servant when he undertook to spike the switch and to guard it so as to save the plaintiff harmless against the threatened danger that overtook him. If he was there is no liability against the defendant; but if he was doing the work of a vice principal that was entrusted to him by the defendant, then the defendant is liable. It cannot be successfully contended that the order of Gorman to work on this car was the proximate cause of the plaintiff’s injury, and for which he may recover. There was no negligence in any order given by Gorman to plaintiff. The plaintiff’s inexperience in car repairing had nothing at all to do with causing his injury. Had the switch been properly spiked as Gorman supposed he had done, the plaintiff could not, and would not, have been injured. It is also true that if Gorman had properly guarded this switch by keeping a lookout according to promise that plaintiff would not have been injured. These two failures on Gorman’s part are his only acts of negligence proven in this case. Plaintiff knew as well as Gorman or any one else that his safety from the danger of a collision with other cars depended altogether on the character of Gorman’s work in spiking and guarding that switch. It was Gorman’s long experience as a car repairer and the plaintiff’s lack of experience in that particular work, no doubt, that led the defendant’s superior servants to make Gorman foreman over Farber in the actual work of repairing cars. There is no part of the work they did, or had to do, that day except the bare work of repairing the car that Farber did not thoroughly and minutely understand. There was no reason shown why Gorman’s authority should extend any further than in the matter of repairing the car and in the matter of ways and means of repairing it. There is no evidence that he had any other authority that is not absolutely annulled by the fact that the defendant had in force a positive rule about the flagging and spiking of the switch, in substance that it was the duty of the car repairers either to flag the switch or spike it so that switchmen would not endanger them by collisions with other cars. It was Farber’s duty and it was Gorman’s duty to obey this rule. It was for the protection of both of them. Negligence of either one in following, or omitting to follow, this rule endangered both of them. The rule was reasonable and effective for its purpose if obeyed. It had not been habitually or otherwise disobeyed before. Farber could do what the rule required as well as Gorman or any one and he knew as well as any one the importance of it being obeyed. While the plaintiff says he did not know the rules pertaining to car repairers, yet, he says, he knew this rule with reference to flagging and spiking the switch, and knew he had to have a flag on the track itself or had to spike the switch, one or both, that morning when he went to work, as appears from the abstract on page 19. There is no question or controversy over this proposition. This being so, the duty of protecting the car against collisions was under this rule, not that of appellant, but of both Farber and Gorman; and the negligence of either one was necessarily imputable to the other; and neither one under this state of facts could recover of the master for the negligence of the other in carrying out, or failing to carry out, the rule of the defendant. As it was Farber’s duty to protect himself under this rule, he could not escape the duty by accepting a promise of Gorman that he would comply with the rule or would guard him against the danger by keeping a lookout. Gorman had no right or authority to change or suspend or to abolish the rule, and when he was attempting to observe it, was not exercising any authority or control over plaintiff as a vice principal and was only attempting to perform the duty of car repairer. An employe violating a rule intended for his protection and the protection of others working with him is guilty of such contributory negligence as to bar a recovery for injuries sustained thereby. The negligence of one car inspector who undertakes to maintain a lookout for danger, or who negligently fails to observe a rule prescribed for all to observe who are working with him, is imputable to the others. 1 Thompson on Negligence, sec. 507; I. C. R. R. Co. v. Winslow, 56 Ill. App. 462; C. & A. R. R. Co. v. Myers, 95 Ill. App. 578; Id. v. Stevens, 80 Ill. App. 671; Wabash R. R. Co. v. Zerwick, 74 Ill. App. 670; LaBatt on Master and Servant, Vol. 1, p. 473, N. 2; Brown v. People’s Gas Light Co., 81 Vt. 477, 22 L. R. A. 738 (N. S.). It is true that the duty of the master of providing and maintaining for his servant, a reasonably safe place in which to work is non-delegable. But this rule does not require the master, as such, at all times to maintain the place reasonably safe against operation. This is a mere act of service and may be performed by a competent fellow-servant. There was nothing dangerous in this working place except when this switch or car was sought to be operated or worked on by other employes. There was nothing to do to make it and keep it a safe place, except to guard against other employes switching cars or moving engines on this track; and the defendant furnished a simple adequate rule to secure it; and all that the car repairers had to do to have safety was to obey this rule, the easiest part of their daily task and of the most importance to them. Spiking this switch and flagging it was not a duty retained by the master nor undertaken by it in this particular instance, but was by express provision of this rule made the duty of the employes as such.' It was one that could be, and was in fact, delegated to co-servants. How then can there be a recovery in this case if we follow the law? Test the question in every way known to the rules of law, and the only rational conclusion that can be reached is that Gorman and the plaintiff were fellow-servants in the matter of flagging and spiking and guarding the switch. The fact that there was no flag within reach was of no consequence under the evidence. They were not compelled to work without one if necessary to their safety. A vice principal is one to whom is deputed the discharge of some duty or the exercise of some power which belongs to the master, as such. .A test by which to determine whether a person is acting as a vice principal or fellow-servant in a particular instance is whether, at the time of his alleged negligence, he was intrusted with the performance of some absolute and personal duty of the master himself, cast upon him as a matter of law, or retained by him as master. If the negligence complained of consists of some act done or omitted by such foreman or vice principal while working as a co-laborer with those under his control, and which might just as readily have happened with one of them having no authority or power of a foreman or vice principal, the common master will not be liable. In any act or omission the foreman is a fellow-servant with the men under him when his act or omission is likely to be performed or omitted by any servant. He does not act as a vice principal when engaged in any work which does not pertain to the duty or peculiar power of the master. Decatur C. M. Co. v. Gogerty, 80 Ill. App. 632, Pasco v. Minneapolis S. & M. Co., 18 L. R. A. 153 (N. S.); C. & A. R. R. Co. v. May, 108 Ill. 298; Gall v. Beckstein, 173 Ill. 191; Anderson v. Higgins, 122 Ill. App. 455; Fitzgerald v. Honkomp, 44 Ill. App. 365; 1 LaBatt’s M. & S., sec 219; Met. El. Ry. Co. v. Skola, 183 Ill. 454; Baier v. Selke, 211 Ill. 512; Brown v. People’s Gas Light Co., 81 Vt. 477, and 22 L. R. A. 738 (N. S.). A master has complied with the rule which requires him to furnish a safe Avorking place for his servants when he has provided against such dangers as may reasonably be apprehended by furnishing the servant with means of protecting himself. A foreman becomes a fellow-servant of the laborers in making use of the means which the master has provided to render the working place safe for employes. Brown v. People’s Gaslight Co., 22 L. R. A. 738 (N. S.); Munn v. L. Wolf Mf’g. Co., 94 Ill. App. 122. In the cases cited by appellee on the question of the negligence of the vice principal the work in hand was the making or selecting a safe place or appliance and not in the matter of guarding or protecting the employes at work against the probable dangerous approach of others working in some other department as in this case, and when read closely they will be seen to be inapplicable to this case, to-wit: C. & A. R. R. Co. v. Eaton, 96 Ill. App. 570; Kewanee B. Co. v. Erickson, 78 Ill. App. 35; C. B. & Q. R. R. Co. v. Avery, 109 Ill. 314; Leonard v. Kinnare, 174 Ill. 532; C. R. I. & P. R. R. Co. v. Rathneau, 225 Ill. 278. Where the servant is suing the master for injuries occasioned by the negligence of another servant he must allege and prove that the servant causing the injury was not a fellow-servant. Chic. C. Ry. Co. v. Leach, 208 Ill. 202. The appellee having failed to prove that Gorman was not a fellow-servant at the time of Ms alleged negligence, and there being no dispute as to the facts bearing on that question, the lower court erred in its refusal to direct a verdict of not guilty in this case, and the cause is therefore reversed without remanding. Reversed. Finding of fact to be incorporated in the judgment: We find as an ultimate fact that appellee and. Gorman were fellow-servants at the time of the alleged negligence of Gorman.