Howd v. Mississippi Central R. R.

SiMRALL, J.,

delivered the opinion of the court.

This suit was brought by E. M. Howd, widow, against the Mississippi Central R. R. Co., to recover damages for the loss oí the life of her husband from injuries received by the running off, and breaking of a portion of the cars of the company ; William W, Howd, the husband, was a conductor, in the employment of the defendant, and was acting in that capacity on the train at the time the casualty occurred, causing his death.

The first count alleges that the company did not use due and proper care to have and keep its railroad in good repair and condition, but suffered and permitted its railroad in its road bed, cross ties, iron and the strength and condition of its track, to be in bad repair and condition, and knew such defect or could have known the same by the exercise of reasonable diligence, but the same was? unknown to William W. Howd; and that the causalty which be *186 fel tbe train of which he was conductor, and which caused his death, was attributable to the bad repair and condition of the railroad.

The second count alleged that it was the duty of the defendant -to keep.its rolling stock, engines, tender and cars in good order and repair. That the casualty was caused by the bad repair and condition of the engine tender, rolling stock, comprising the train, which was known to the defendant, or would have been known ■by the use of reasonable diligence.

No evidence was offered b}r the plaintiffs under the second •count; and that may be dismissed without farther consideration. The effort was, under the general issue, to sustain the cause of action stated in the first count.

That count assumed, or affirmed by implication, that if the railroad was not in proper repair and condition to afford reasonable safety to a passenger train traversing it, and the casualty occurred by reason of the road being out of repair and in bad condition, which was known to the defendant, or might have been known by the use of reasonable diligence, but was unknown to Howd, the •conductor, then the plaintiff can recover.

It is the duty of the master or employer to furnish his servant ■or employee with the materials, tools and appliances suitable for the performance of tbe service required of him. If the service is hazardous, and involves the use of implements and instrumentalities, in themselves dangerous, it is presumed that the servant accepts the service with the usual hazards incident to it; and that he has stipulated for wages, proportioned to the risk. But the master must use reasonable care, such as men of ordinary prudence employ; to provide safe implements and instrumentalities, suitable for the business.

The conductor of a train on a railroad assumes all the risks incident to the employment. But the company is under a duty, to exert reasonable care for the safety of its servants, by providing a safe railroad bed, bridges, rolling stock and machinery, and to *187 keep the same in proper repair and order. In view of the magnitude of the undertaking, to properly equip, keep in repair and operate a railroad of the length and business of the defendants, extending from Canton, in this state, to Jackson, Tenn., and looking beyond that to the vast system of railroads with which this, and others in this state are connected ; so blended all over the country as to constitute the chief means of internal travel and commercial transportation — the questions affecting the relations of these corporations, with those in their service, and with the public, partake very much in importance, as we observed on a former occasion, of the nature of public questions. And the rules which may be established by the courts, very largely affect the interests of the community.

Testimony was offered by both parties on the trial as to the condition of the road at and near the place of the catastrophe. The witnesses of the defendant represented the road as safe. The testimony for the plaintiff tended to show that it was dangerous because of decayed cross ties and loose spikes. It cannot be determined with entire satisfaction what was the proximate cause of the accident. There was evidence that one of the rails was entirely off the track, and the jury might have inferred that it had been removed before the train reached the spot, and that its displacement caused the tender and passenger coaches to be thrown off.

Upon all the controverted points upon which testimony was produced, the verdict can well be sustained unless the jury were misdirected by the court. The entire body of the case is embraced in the instructions.

The first charge for the plaintiff was, that if the train was thrown from the track by reason of a- defective road, and that fact was known to the defendant, or would have been known by the use of reasonable diligence, then the plaintiff could recover, if the defect was unknown to the conductor Howd, or could not be discovered in the nature of his employment.

*188 The second instruction declares-that it is the duty of the defendant to use reasonable precaution for the safety of its employees, and to furnish a suitable railway and keep it in such reasonable good conditition as not to endanger their safety.

The third charge makes the defendant liable if, with its knowledge or by the use of reasonable diligence, it would,have known the road was in an unsafe condition for running trains, and Howd, the conductor, had not such knowledge or the means of knowing from the nature of his employment.

The fourth and fifth charges, in other forms of expression, embody the same ideas of the law.

The sixth charge declares that whilst the defendant would not be liable if it used reasonable and proper care in procuring suitable agents to keep up its track in order, and furnished suitable material to keep the same in repair, yet, if the defendant was negligent in the selection of agents to keep the track in repair, and knew of the defects of such agents, or could have known it by the use of ordinary diligence, and that the accident which caused the death of Howd was referable to an imperfect track, which was not known by him, or discoverable by the nature of bis employment, and that defendant did know it, or might, with the use of ordinary diligence, have known it, then plaintiff ought to recover.

For the defendant the court charged that the burden of proof is upon the plaintiff; as to the bad condition of the road, or in not using proper care in the selection of agents, or in continuing them in service after notice of incompetency or negligence; and if the loss of the life of Howd, the plaintiff’s husband, was caused by the negligence of the fellow-servants, the defendant is not liable, and that all persons employed by the same master in the same general business are fellow servants.

Since the case was tried in the circuit court, we have decided the case of N. O., J. & G. N. R. R. Co. v. Hughes, which disposes of many of the points argued by counsel.

*189 The question most discussed by counsel is, whether the master is liable where the injury to the employee is the result of the negligence and carelessness of fellow servants.

In N. O., J. & G. N. R. R. Co. v. Hughes, decided at the last term, we accepted as the rule upon that subject, established by unbroken authority in England, and the concurrence of most of the American states, that in such circumstances, the master was not liable, unless he was chargeable in the first instance with the want of reasonable, ordinary care in the selection of his servants, or continued them in service after notice of their negligence or carelessness, or, it may be added, after he ought to have known of their unfitness, and could have known by the use of due and reasonable diligence, or after actual notice. A railroad corporation must be responsible like a natural person, for all the consequences which befall an employee, that may be referred to its own negligence or carelessness. We can only find the ideal personage in its organs and higher agencies -for conducting its business. The stockholders and owners of the franchises and property, act through agencies, and only through them.

The duty is devolved upon the corporation to maintain a railroad, rolling stock and motive power, with the usual and necessary appliances and accommodations, safe and suitable to the character of its business.

It must keep the road bed, cars, machinery, etc., in reasonably safe repair. The implied undertaking with its conductors, engineers, brakemen, etc., and other grades of employees, is that it will use that measure of care, and caution which ordinarily prudent men would i^xert, in performing this duty. But in the nature of things how shall its duty be met, as respects keeping the road in proper repair, its locomotives, cars, and other machinery. The board of directory, or managers, must meet together, consult and devise measures for the orderly management and conduct of the general business, and must intrust the various departments to suitable agents. The details as respects the maintenance of the *190 track was shown in evidence in this case. Sections of the road are committed to a section master, with a corps of workmen. The corporation will have done all that could be reasonably required of it, when it exercised circumspection and prudence, in appointing employees, to observe the road, make the repairs, and when it put at their disposal suitable material for the work; and when it caused suitable supervision to be had over these local employees. For if a part of the road should become unsafe because of the neglect of such employees to make repairs, and should so continue for a length of time, sufficient to induce the presumption that the company knew of it, or ought to have known of it; then it is negligent and careless, and is liable to other employees, for injuries resulting therefrom. It was satisfactorily proved that the section master had workmen enough, and material enough to keep the part of the road assigned to him in repair. It was also his duty to report the condition of the road to the deputy superintendent, who for the purpose securing such notice represented the corporation. It was also the duty of the conductors to give him information of any part of the road being out of repair. Perhaps the preponderance of the testimony was that the road was reasonably safe. No report had been made to the proper officer, by any conductor, or other person that it was out of repair, or that the section master was derilect in duty.

It was distinctly stated in Wright v. N. Y. C. R. R. Co., 25 N. Y., 562 , “ that the railroad company knew or ought to have known of the defect which caused the injury.” Negligence being the gist of the action, that must be brought home to the company, either by proof of their knowledge of the defect, or that they were negligent and careless in the selection of agents ; or that after notice of incompetency, they remained in service. Hard v. Vermont C. R. R. Co., 32 Vt., 473 is emphatic on the same point. Also Warner v. Erie R. R. Co., 39 N. Y., 478 . The argument on this point is summed up with great precision and terseness bj Lord Cairns in Wilson v. Morry, in the House of Lords, Appel *191 late Series, part 3 — “The master has not contracted to execute in person the work connected with his business, but to select competent persons to do so, and furnish them with adequate materials»- and resources for the work. If the persons so selected are guilty of negligence that is not the negligence of the master.” The principle had an application in C. & A. R. R. Co. v. Murphy, 53 Ill., 336 , which was an action by the administratrix of the deceased, who was a workman with several others, under one Hill, as foreman, whose duty was to examine all the trains that arrived at Bloomington, and make needed repairs. Deceased and fellow- laborer had been at work about a freight train, and had started with their tools.to the shop, where they were to be deposited •' whilst walking between the rails of the main track, deceased was struck by a switch engine. This engine was under the immediate control of the yard master, and was used for various purposes on the yard grounds. It was conceded that the engineer upon-the switch engine was careless (and waiving the question of want of care, on the part of the deceased), it was held that the deceased' and engineer were fellow servants; and under the rule, accepted in that state, the corporation was not liable. In the case of Noyes v. Smith & Lee, 28 Vt., 61 , the injury was occasioned by the explosion of an engine. It was held to be the duty of the master, to use reasonable care in procuring the engine, and if he knew that it was defective, he was liable. In Keegun v. W. R. R. Co., 8 N. Y., 180 , the boiler was defective and dangerous, and had been several times so reported to the defendant, which was entered on the defendant’s boobs kept for that purpose. The defendant was responsible for using the engine, known to be defective. The following cases are referred to as explicitly stating the circumstances, under which the master is or is not liable. Williams v. Clough, 3 Hurl, and Nor., 259; Patterson v. Wallace, 1 McQueen, 748; Marshall v. Stewart, 33 Eng. L. & Eq., 1; Tarrant v. Webb, 866; C. L., 796; O’Donnell v. A. V. R. R. Co., 59 Penn., 246 .

*192 In Chicago & N. W. R. R. Co. v. Swett, Adm’r, 45 Ill., 201 , the injury resulted in the. death of the fireman, on the locomotive engine, from an original defective construction of the road, its bridges, culverts and appurtenances, the company was held liable on the principle that the corporation was bound to furnish to their servants safe materials and structures. See also Davis v. Milwaukee R. R. Co., 20 Mich., 105 . The principle established by the authorities may be stated in this formula. The master is not liable for injuries which may have happened to a servant in his employment unless the master is culpable, that is, chargeable with negligence or carelessness either in respect of the act which caused the injury, or in the employment of the person who caused it, or keeping him in service after notice of his unfitness, or after, with the use of proper diligence he ought to have bnown it. '

A railroad company is bound in the original construction of its road and appurtenances, to make it reasonably secure for the safe transportation of trains upon it, and also to keep the track in repair.

In order to discharge the latter duty the corporation must employ suitable persons and supply them with needful material to make repairs; and should also through its agent or' agents, have a supervision over the road. In order to hold the company responsible to an employee (as a conductor on its train) for injuries sustained, because of the road or its appurtenances being out of repair, it must be shown that the company is in default in its duty, either by the selection of incompetent servants or an insufficient number to do the work, or failure to furnish proper material, or that the company had notice of the bad condition of the road, or is chargeable with negligence for not knowing.

The instructions to the jury, taken as a whole, are in accordance with the views herein expressed and those enunciated in N. O., J. & G. N. R. R. Co. v. Hughes (MSS.) *

*193 We bave given mature reflection to the principles adopted in the case last cited and reiterated in this opinion, and adhere to them as reposing upon sound reason and considerations of policy. All the great businesses of the world are carried on by means of agencies. Accidents are incident to all employments, requiring caution, skill and diligence1. The employer has exhausted his resources for the safety of himself, his family and property, when he has been careful to select competent servants. He can do no more for the safety of his servants than to exercise reasonable circumspection in choosing those who are associated in a common business, and to supply them with proper and suitable materials, appliances and instrumentalities according to the nature of the service. When these duties have been performed, negligencies on the part of any of them are risks incident to the service, which each employee takes upon himself.

Every member of the community has an interest that the great and necessary business of the transportation of passengers and freight by the railroad companies, shall be promptly and safely done. It seems to us that the tendency of the rule of the non-liability of the corporation to an employee for the negligence of a fellow servant, subject to the limitations we have stated, is to stimulate the zeal and vigilance of employees to be careful and watchful to guard against accidents. At the same time we would hold these corporations toa faithful fulfillment of all the correlative duties , incumbent upon them for the safety of those in their service.

It need hardly be remarked that very different responsibilities attach to railroad companies, and other public carriers, for injuries sustained by passengers and shippers of goods, or strangers for injuries sustained either in person or property, from the negligence of servants and employees.

The judgment of the circuit court is affirmed.

Those given, at the request of the plaintiff embody correct rules of law with great clearness and precision.