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“Roll another pole over. What the hell are|(5) If you find from the evidence that Mr. you looking at? You bave lots of time. Roll Light gave the order to the plaintiff to conihem over! Roll them over!" While plaintiff tinue work, as the engine was backing up, but and bis wildesses place Light at this time some that the fact of its near approach was not eight or ten feet east of the car, some other evi- known to Mr. Light wbep be gave the order, dence puts him near the middle of it. When and was known to the plaintiff, then tbe plainthis order was given by Light, plaintiff resumed tiff was guilty of coniributory negligence in bis work; and he teslities that be went to work failing to potify Mr. Light of its approach, and because Ligbt told bim to,-ihat Light was ibe to secure bimself; and your verdict must be boss of the gang that day. Plaintiff says that for the defendant. (6) If you find that Light when he turned around to see, and saw the en. gave the order as claimed by plaintiff, but that gine coming, he thougbt sbe was coming to at the time of giving it the danger from the make the switch to move the cars, and then he engine was not imminent, then the giving of the grabbed bold; but when Light told him to go order was not the proximate cause of the in. to work, he did the same as the rest, went 10 jury, but the proximate cause was bis failure work to roil more poles over to level the car subsequently to warn the plaintiff; and for up, and did not tbink they were going to let the such beglect the defendant is not liable, and engine come back on the car until they got the plaintiff cannot recover. (7) If it was apthrough. On being asked if he relied upon parent to plaintiff, when he looked around to wbat Ligbt said in ihat respect, be stated: "I the engine, that the danger of the engine runhad to do as be told me, or may be I would get ping into the flat car was then impending and the red licket. I thought he would not let the imminent, then the plaintiff was guilty of deg. engine come back while we were at work on ligence in obeying Light's order, and cannot it.”
recover. (8) The evidence sbows that if the Wbile the plaintiff was so at work the engine bell bad been ringing as the engine backed was backed down against the car. Plaintiff down, the plaintiff would bave been warned, was tbiown off, and seriously, and, as it is and would not bave been injured; and I charge claimed, permanently, injured, aud in a condi- you that the omission to ring the bell was the tion wbich w bolly prevents him from doing proximate cause of the injury, and the plaintiff any kind of labor. It is claimed ibat Light cannot recover. (9) Under all the evidence in took no steps to warn the plaintiff of the ap- the case, the defendant is not liable for the inproach of the engive, or to prevent the engine jury to the plaintiff; and your verdict must be, from striking the car. Plaint also claims no cause of action." thut tbe bell was not rung, and the jury so The court refused to give these instructions, found; tbat be was listening for the bell, and, but instructed the jury that the negligence of bad be beard it, would have taken it as a sigval Mr. Ligbt would be the negligence of the of danger, and protected bimself. Mr. Ligbt Company, and for wbich a recovery might be admits ordering the engineer to take the car bad Defendant's counsel submitted five speupon which plaintiff and the others were at ciul questions for a finding of the jury thereon, work, and move it to another part of the yard, as follows: "(1) If the bell bad been rung as but denies that be gave the plaintitf the order the engine backed down on the car, would claimed; that he merely directed the men 10 such ringing have given warning to the plainlevel ibe poles on the car, but gave no other liff of the approach of the engine? (2) Was order until after the accident; that he stood the bell upon the engine ringing when the cowith his back partly to the east, and at right gine was backing up on the side track to the angles to the east switch; that he saw the en-car on wbich the plaintitf was at work? gine pa-s over the switch to the east and stop, (3) Would the accident have bappened if the and did not see it again until it struck the car. bell on the engine had been ringing as the enThe defendant also contended that the bell was gine backed up against the fall car? (4) Was being rung wbile the engine was backing down. The accident caused by the failure of the plain.
At the close of the testimony, counsel for de- tiff to beed the warning of the bell-ringing? fendapt requested the court to instruct the (5) At the time when tbe plaintiff turned and jury: "(1) If you find that the injury to the saw the engine coming and iried to make himself plaintiff was caused by the negligence of Mr. sare, as be testifies, was the danger imminent?" Light, the assistant road-master, the plaintiff The court submitied the second, fourth and cannot recover, for the reason that the two fifth of these questions to the jury and refused were fellow servants, and the master is not the others. To the second, the jury answered, liable for an injury to one caused by the neg. “No;" to the fourth, they said it was disposed ligence of another. *(3) If you find that the of by their answer to the second; and io the plaintiff was ordered by Mr. Light to continue fifth, answered "No." work while the engine was approaching the The principal questions argued here are flat car upon wbich tbe plaintiff was at work, grouped by counsel for defendant under the but at the same time the bell upon the engine four following beads: "(1) If Light's negligence was ringing and the engine was backing up, was the cause of tbe injury, was Light, in doing then the plaintiff was guilty of contributory this work, the fellow servant of plaintifri negligence in failing to heed the warping of (2) If be wis not, then was his negligence the bell; and your verdict must be for the de- the proximate cause of the accident? Or was fendant. (4) If you find that such order was sucb proximate cause the neglect of the en. given by Mr. Light, but that afterwards the gineer or fireman to ring the engine bell? (3) bell upon the engine was rung as a warning of Whether appellant was entitled to bave the the approach of the engine to the flat car, then two special questions one av bree submitted the plaiutiff was guilty of contributory negli- |(4) Was the special verdict inconsistent with gence, and cannot recover in this action. the general verdict!"
No exceptions were taken to the admission fireman, under such circumstances, are the or exclusion of evidence during the trial of the fellow servants of the plaintiff. It therefore cause, aud no complaint is made of the charge became a material fact in the case, for the deas given. The principal contention is that the termination of the jury, whether the failure of plaintiff and Light were fellow servants, and the engineer or fireman to ring the bell was the therefore the defendant Company could not be proximate cause of the injury; and the court was held liable for the negligence of Light, even if, in error in not permitting the jury to pass upon through his negligence, the plaintiff received the special questions 1 and 3 presented. The his injuries. It is too well settled in this State jury found ibat "the bell was not ringing when to need the citation of authorities that the mas- the engine was backing up on the side track to ver is not liable for injuries personally suffered the car on which the plaintiff was at work." by bis servant through the negligence of a fel. The plaintiff testified that, if he had heard the low servant, acting as such while engaged in bell ringing, he would have looked around, and the common employment, unless the master is prepared himself for the shock. The answer chargeable with negligence in the selection of to these special questions, "If the bell had been the servant in fault, or in retaining him after rung as the engine backed down on the car, potice of his incompetency: It is not con- would such ringing have given warning to the tended in the present case that Mr. Light was plaintiff of the approach of the engine?” and incompetent for the position held by him as "Would the accident have happened if thebell assistant road master, but the claim of recovery bad been ringing as the engine backed against is based upon the ground that he was not a fel. the flat car?"-might have shown that the low servant of plaintiff. Neither is there any jury found the injury was caused by the negli. serious contention that the work being per- gence of the engineer or fireman, and that the formed by the plaintiff was in itself dangerous. proximate cause of the injury was their negliTbe rule, therefore, that the master is bound gence. Counsel for the plaintiff contended to provide a safe place in which to work, orihat these did not submit questions of fact, but suitable tools and materials to work with, has possible contingencies, if certain facts which no application to this case. The fact that the did not exist bad existed, and were therefore not plaintiff was ordered by Ligbt 10 load the poles proper questions for submission to the jury. upon the car, and to go upon the car to level They were something beyond mere possibilities, them, and his having done so in obedience under the testimony of the plaintiff himself. to the order, was not putting him in a place He was a railroad man,-bad been engaged in of danger by the assistant road-master. The that service for a series of years; and be knew, injuries wbich be received did not grow as he testifies, that the ringing of a bell on an out of the work be was ordered to do, either engine is evidence that the engine is about to from the work being dangerous in character, move or is moving; and even people who are or the place in which he was working, danger- not versed in the rules of railroad companies
Neitber was he injured by reason of any generally understand this fact. Therefore, acdefect in machinery, tool or other appliance cording to this testimony, if the bell bad been ne was called upon to use.
ringing he would have prepared bimself for the There are many cases in this State holding shock; and the jury might have found, if the that, when a superior servant orders one under question had been submitted to them, that the bim to perform work differing from that for accident would not have happened if the bell which he is employed, the superior is guilty of had been rung. This finding would, in effect, an abuse of authority, and the master beld have been that the accident happened through liable. But in the present case the work being the negligence of the engineer or tireman, and done was in the ordinary line of the duty of not through the fault of Light; for, even if the section gang. Their ordinary duty is to Light gave the order to plaintiff to continue his keep the road-bed in repair, but tbey are often work, and by such order indicated that the encalled upon to load ties, poles and other mate gine would be kept from backing down, yet, if rials upon the flat cars, and to unload cars; plaintiff knew or believed, notwithstanding and they must be held to assume the risk inci Light's assurances, that the engine was actually dent to such employment.
coming, and would strike the car, and place The in jury resulted either from the negli- him in peril, very naturally he would have gence of Light in ordering the plaintiff to con- tried to save himself. tipue the work wbile ibe engine was backing There is no evidence that Light had control down upon the car, and telling him there was of the engine, or that the engineer was not in plenty of time, thus throwing him off bis guard, full and complete charge of her. Evidently, and leading him to believe that Light would the station agent, at the request of Light, gave take care that the engine did not strike the car, the order to the engineer to uncouple from his or it resulted from the negligence of the ergi. train, and have the flat car upon which the peer or fireman in not ringing the bell, which, plaintiff was working moved forward to the if it had been rung, might have given the plain other pile of poles. When the engine had tiff warning of the approach of the engine, so backed down to the switch, the forward brake. that he could have steadied himself as it struck man of the freight train opened the switch, and the car, and thus saved himself from being then ran back to the car to make the coupling, thrown off, or it was the result of plaintiff's at the same time giving the engineer the signals own carelessness. If the injury grew out of to back down. This evidence shows that the negligence of the engineer or fireman in Light bad nothing to do with making the coupdot ringing the bell, if that was the immediate ling or giving the signals. Wbile be stood near and proximate cause of the injury, the plaintiff there, and, as plaintiff testifies, between the would have no right of recovery, as the law is engine and flat car, near the track, there is no well settled in tbis State that the engineer and evidence in the case that he had, or attempted
to exercise, any control over the engineer in the servant's dependent and inferior portion is to manner of backing the engine down, or made be taken into consideration; and, if the pecul. any signals to stop or start. It was therefore an iar risk commanded by the master is not obimportant element in the case, for the jury to vious, the servant has the right to assume that deiermine under all the circumstances, and he is not being put in peril, and is not bound especially under the testimony of the plaintiff to investigate into the risk before obeying his bimself, wbether the failure to ring the bell, if orders. He is not called upon to set up his it was not rung, was the proximale cause of own judgment against his superiors; and he the injury; and the court should have submitted may rely upon their advice, and still more upthe special questions.
on iheir orders, notwithstanding many misgiv. The court was also in error in refusing to give ings of his own. And it is a general rule ibat the defendant's fifth and seventh requests to if the master directs the servant to do some act cbarge. If, as stated in the fifth request, Light which is even dangerous, but which could be did give the order 10 the plaintiff as be claims, made safe by special care upon the part of the but at ibat time Ligbt did not know of the near master, the servant has the right to assume approach of tbe engine, and the plaintiff did that such special care will be taken; and, failknow of its approach, and failed to notify Light, ing to exercise such care, the master is held or to save himself, he was guilty of contribu. liable. The jury found that at the time when tory negligence. Plaintiff would have no right plaintiff turned and saw the engine coming, to claim that, though be saw the engine ap- and tried to make himself safe, as be testifica, proaching, and knew that he would be put in the danger was not imminent; and, from the peril wbep it backed against the car, yet be said issues submitted to them under the charge of nothing in Ligbt, and made no effort to secure the court, they also found that Light not only bimself from the fall. If such facts existed, told the plaintiff there was lots of time, but the plaintiff must have apprebended a danger that he pegligently permitted the engine io wbich was not apparent to Light. The evi. be backed against ihe car. dence is somewbat conflicting as to wbether The management of the affairs of a railroad the engine came to a stop after it approached company is vested in its board of directors, and or crossed over the switch, but Light testifies such powers as Doyle or Light possessed anu. tbat be saw and beard nothing of its approach; exercised were such only as were delegated by that bis back was turned partly towards the the directors under the rules of the Company. engine, and he was giving his attention to the So far as the corporate directors are concerned, men loading the poles. Plaintiff would have no question can be made that for all purposes po right to recover damages for the negligence they represent the corporation, and their acts of Ligbt, if he was aware of a danger wbich as a board are the acts of the principal; but, in Lighi did not apprebend, and, being aware of the managenient of its affairs, ceriain powers it, did not scek to save himself from injury; are and must be delegated to agents or servantsand the fact ibat Light ordered bim to go on who are clothed with certain discretionary with the work would not justifiy him to do so, powers. If the master places the entire charge in the face of danger which was apparent to of his business, or a distinct branch of it, him. This was covered by the seventh request, wholly in the bands of an agent, exercising no wbich should bave been given.
discretion and no oversight, the neglect of the The other requests, as framed and presented agent of the ordinary care in the exercise of to the court, were properly refused. The first the business of the master thus entrusted to request to charge presents the most important him is a breach of duty for which the master question in the case. It assumes that Light is is held liable. a fellow servant of the plaintiff, and therefore Just what relation this superior servant bears no recovery could be bad, even if his negligence to other servants it is often difficult to deterwas the proximate cause of the injury. Under mive in a given case. The solution of the the circumstances of this case, was be a fellow question must depend largely upon the power servant, or a representative of the defendant delegated to the superior servant, the exercise Company, standing in the position of a superior of such power and liis command and authority servant or agent, for whose negligence defend over those acting under bim. The reciprocal ant Company is to be held liable? If Light, in rigbts and duties of such servants, and the this position as a superior servant, represented liability of the master, are dowhere defined, the defendant Company, and the plaintiff, re- except by adjudicated decisions of the couris; lying upon the statement of Light that he had and in some of the States the duty and liabil. lots of time, went to work again under the ity of the master is pushed much further than belief that Light would not let the engine back in others by these adjudications. against the car until the poles uad been leveled In this State, in 1861, in the case of Michigan off, and Light knew that the engine was back. Cent. R. Co. v. Leahey, 10 Mich. 199, the yening up, or was in a position where he would eral doctrine was laid down that the master is have kuown it if be bad exercised ordinary not liable to a servant for the neglect of his care, and he gave the plaintiff no warning of fellow servant in doing or omitting to do their is approach, and plaintiff did not know of portion of the common work. This rule has its approach, the negligence of Light in per- been followed and approved in numerous cases, mitting the engine to back up, and failure to which have been so often cited that a repeti. give such warning, would be the negligence of tion is unnecessary. The rule grew out of the the defendant Company, for which the plaintiff English doctrine laid down in Priestley v. would be entitled to recover, if this, and not Fowler, 3 Mees. & W. 1, in 1837, and which the engineer's or fireman's negligence in failing has since been adhered to in England, to ring the bell, was tie proximate cause of The Massachussets court, in Faruell v. Bosthe injury. Under such circumstances, the ton & W. R. Corp., 4 Met. 49 (decided in 1842),
adopted the rule of the English courts. Otherance of duties towards the inferior servant States followed this rule, until it has become which the law imposes upon the master, the general doctrive in all the American States. The rule is ably discussed by Chief Justice Tbe reason of this rule as held by the Massa- Church in Flike v. Boston & A. R. Co., 53 N. Y. chussetts court in the early case above cited, 549, where he says: "The true rule, I appreis that, "where several persons are employed bend, is to hold the corporation liable for degin the conduct of one common enterprise or ligence or want of proper care in respect to undertaking, and the safety of each depends such acts and duties as it is required to permuch on the care and skill with which each form and discharge as master or principal, other shall perform his appropriate duty, each without regard to the rank or title of the is an observer of the conduct of the others, can agent intrusted with their performance. As give notice of any misconduct, incapacity or to such acts, the agent occupies the place neglect of duty, and leave the service if the of the corporation, and the latter should be common employer will not take such precau- deemed present, and consequently liable for tions and employ such agents as the safety of the the manner in which they are performed.” wbole party may require. By these means the If an agent whose duty it is to employ serv. safety of each will be much more effectually ants or provide materials for the company acts secured than could be done by a resort to the negligently in that capacity, bis fault is that of common employer for indemnity io case of the company, because it occurred in the perloss by the negligence of each other. Regard- formance of the principal's duty, although only ing it in this light, it is the ordinary case of one an agent himself. sustaining an injury in the course of his own In Malone v. Hathaway, 64 N. Y. 5, Mr. employment, in which he must bear the loss Justice Allen makes the distinction between himself, or seek his remedy, if he have any, natural and artificial persons, and lays down against the actual wrong-doer."
the rule that it is only where the master withThe rule tbus adopted did not, however, re- draws from the management of the business, lieve the master from a duty and obligation intrusting it to a middleman or superior servto his servants, whether tbe master be a natural apt, or where, as in the case of a corporation, person or a corporation, to furnish safe ma the business is of such a nature that the general chinery or other apparatus, and to observe all management and control thereof is necessarily the care wbich the exigencies of the situation committed to agents, that the master can be reasonably required, as well as to employ com held liable to a subordinate the negligent petent servants. It is the duty of the master, acts of one thus placed in his stead. Under also, to make such regulations or provisions tbis rule, a foreman who had no delegatiou of for the safety of employés as will afford tbem power or control, but who was merely charged reasonable protection against the dangers inci. with special duties, was held to be a fellow dent to the performance of their respective servant. 7 Am. & Eng. Cyclop. Law, 834. duties. Tbjs duty extends to the selection of Mr. Wharton, in bis work on Negligence competent persons, to whom the master may ( 229), says this doctrine is in harmony with delegate bis authority, to take charge of and the American cases. control the business in which the servants are As before stated, it is difficult to lay down employed. There is no diversity of opinion any general rule wbich shall determine all upon these propositions. The difficulties arise cases. In some of the States, it is undoubted. wbep courts are called upon to determine who ly true that the master is held to a much stricter are and who are not fellow servants in given accountability and responsibility for the acts cases, and this difficulty is made apparent and omissions of those who are classed by when we note the hundreds of cases which in some of the other courts as fellow servants; the last few years bave found their way to the and the tendency of modern adjudications is courts of last resort in the different States of more and more to relax the rule that tbose ihe Union The courts are not in barmony up- who are engaged in the same common enteron this question.
prise or business are fellow servants, especially lo Massachusetts it is said that this rule “is if it can be pointed out that the one in fault not contined to the case of iwo servants work-occupies some higher grade or more power ing in company, or having opportunity to contban the party injured. Especially is this trol or intluence the conduct of each other, but the case where parties are servanis of corporaextends to every case in which the two, deriv. tions. If parties are fellow servants while ening their authority and ibeir compensation from gaged in the business of a natural person, the the same source, are engaged in the same busi- / same rule and reasoning, under like circumness, though in different departments of duty; , stances, ought to place them in the same catand it makes no difference that the servant egory while engaged in the business of a corwhose negligence causes the injury is a subporation; and if one is the agent or superior manager or foreman of bigher grarle or greater servant while engaged in the business of a cor. authority than the plaintiff.” Holden v. Fitch poration, and through whose negligent conburg R. Čo. 129 Mass. 268; 7 Am. & Eng. Cyclop. duct another engaged in the same common enLaw, 835.
terprise is injured, and for whose injuries the This rule is substantially followed in Maine, corporation is beld liable, then, under like cirthough it is said that an exception to the rule cumstances, if it was the business of a natural exists if the master has delegated to the fore person, the master should be so held. Some man or superintendent the care and manage general rules may, however, be laid down ment of the entire business, or a distinct depari- which in many instances may serve as a guide ment of it, the situation being such that the in the determination of the question. It is not superior servant is charged with the perform-' to be determined solely from the grade or rank
of the offending or injured servant, but it is to the master is responsible for it, whether the be determined by the character of the act supervision be by the master in person, or by being performed by the offending servant. If some manager, superintendent or foreman to it is an act that the law imposes the duty whom he delegates it. In other words, while upon the part of the master to perform, the servant assumes the risk of the negligence then the offending employé is not a fellow serv- of fellow servants, he does not assume the ant, but a superior or agent, for whose acts risk of negligence the master himself, or in the master is held liable. Again, if the master anyone to whom the master may see fit to inhas delegated to a servant or employé the care trust his superintending authority. and management of the entire business, or a port of this doctrine the following cases are distinct department of it, the situation being cited: Albro v. Agawam Canal Co. 6 Cush. such that the superior servant is charged with 75; McAndrews v. Burns, 39 N. J. L. 117; the performance of duties towards the inferior Malone v. Hathaway, 64 N. Y. 9; Hard v. servant which the law imposes upon the mas. Vermont & C. R. Co. 32 Vt. 473. ter, then such superior servant stands in the In Ryan v. Bagaley, 50 Mich. 179, it applace of the master, and the rule of respondeat peared that the defendant resided at Pittssuperior applies. Whether or not the servant burgh, and was proprietor of the Palmer Iron has power to employ and discharge other serv. Mines. Decedent, while working as a laborer ants is also important in determining whether in the mine, was killed. The defense was or not he is deemed to be a superior servant, that the casualty was owing to the negligence for whose acts the master is beld liable. Chap- of Whitesides, who was a fellow servant. It man v. Erie R. Co. 55 N. Y. 579; Kansas Pac. appeared that Kirkpatrick was the agent of R. Co. v. Salmon, 11 Kan. 83.
defendant first in station. He knew nothing When the offending servant, having general of the business, and appointed Whitesides as power and authority to employ and discharge mining captain, and with whom the defendant, servants, and baving authority to direct and on his visits to the mine, consulted. Upon control the injured servant, orders him to do the question whether Whitesides was the felan act not within the scope of the injured serv- low servant of the deceased, the circuit judge ant's employment, whereby he is exposed to charged the jury: “Now, what was the podanger not contemplated in his contract of sition of Captain Whitesides? He was a minservice, and he is injured in so doing; or where ing captain. I think it appears from the testithe master bas charged a servant or employé mony that he had the entire charge and control with the sole duty of providing proper mate of the under ground work, and all the work rials and appliances for carrying on the work generally of the mine, and that he employed in which he is personally engaged, and a serv- and discharged men. Now, I charge you that ant is injured by bis neglect so to do, the Captain Whitesides, if he bad this power delmaster is held liable to the injured servant egated to bim-to manage and control the wbile acting under the orders of the superior roine-negligence on his part would be the sərvant. Gilmore v. Northern Pac. R. Co. 18 negligence of the owners or managers of the Fed. Rep. 896.
mine." This court, in considering that part of These rules are in line with the remarks of the charge, says: “Under this charge, and in Mr. Justice Cooley in Quincy Mining Co. v. view of all the facts, it was settled by the jury Kitts, 42 Mich. 39, though the learned justice, that Whitesides' position and power were as in finally deciding the case, held that Wag indicated by the judge. We are consequently ner did not stand, in respect to the company, to consider that he was intrusted with the in such position. It was, however, remarked management of the mine, without direction or by bim that, when a servant demands from interference. He was not, in any true sense, his master compensation for an injury received a mere foreman or department leader or subin his service, it is necessary that he trace some chief, in a given spbere of the mining operadistinct fault to the master himself. The tions. His agency covered the entire mine, mere fact of such injury is no evidence of and his capacity and discretion dominated. such fault; neither is the mere fact that it re. The defendant and his agent, Kirkpatrick, sulted from the carelessness of some other per- equally regarded him, and looked to him, as sop in the same employment. The servant the one person to contrive and execute; and assumes all the usual risks of his employment, they were guided by his intelligence, not he and among these is the risk that fellow serv- by iheirs. In respect to legal accountability, ants will sometimes be careless, and that in- bis negligence was the negligence of the dejuries will result. All that can be required offendant. The case is within the principle the master in that regard is that his servants stated and recognized in Quincy Mining Co. shall be prudently chosen, and that they shall v. Kitts, 42 Mich. 34.” not be retained in his service after unfitness or Many cases have been presented to this court negligence sball be discovered, and bas been involving the questions as to who were and communicated to him. This duty of due who were not fellow servants, but in no incare in the employment and retention of com- stance bas the question been presented under petent servants is one the master cannot re circumstances exactly like the present case; so lieve himself of by any delegation; and, if it that we must determine it upon its own pebecomes necessary to intrust its performance culiar facts, being guided by the rules here to a general manager, foreman or superin laid down. Applying, therefore, the foregotendent, such officer, whatever he may be called, ing rules, so far as the same can be made apmust stand in the place of his principal, and the plicable to this case, is Light to be treated as a latter must assume the risk of bis negligence. superior servant, for whose negligence, if any The same is true of the general supervision of is shown, the defendant company can be beld his business. If there is negligence in this, I liable? He bad general charge of the entire