Martin v. Atchison, Topeka & Santa Fe Railroad

delivered the opinion of the court.

This action was brought by the plaintiff in error to recover damages for injuries sustained by him by being run over by a train on a railroad belonging to the defendant, near Albuquerque, New Mexico. The case was tried before a jury in the District Court of the Second Judicial District of that Territory, and resulted in a verdict for the plaintiff in the sum of $8000. Judgment having been entered, the railroad company took the case, by writ of error, to the Supreme Court of the Territory, which court reversed, the judgment, and directed judgment for the railroad company,' and for costs against- the plaintiff, who thereupon sued out a writ of error from this court, and the case is now- here for review.

On the trial evidence was given showing substantially thé following facts: The plaintiff had been employed by the railroad company at Albuquerque, New Mexico, as a common laborer, “ fixing the road,' straightening out the rails and fixing ties wherever required”; he was about thirty-nine years of age and had been so employed by the company, through one of its section foremen, for several months prior to the happening of the accident. He was under the orders of the section foreman and was to do what the foreman told him-. The section foreman was employed by the roadmaster and the foreman employed the men; the roadmaster directed the section foremen what work to do and ivhere to do it; he laid out the work for them and told them what to do. The section foreman employed the men and saw that they did the work properly. If the foreman thought a man ought to be discharged, he would see the roadmaster or send him a request that the man' should be discharged, and the roadmaster had the power to discharge him. The men under the section foreman, like the plaintiff, were paid by the agents of the company, who came along the line in a pay car.

On June 5, 1889, while the plaintiff was thus employed, .he

It was claimed in the petition on the part of the plaintiff that the accident occurred from the neglect of the conductor and of the hands on the work train, and also by reason of the neglect of the section foreman on the hand car with the plaintiff in ordering plaintiff to face north while working the car, and in not keeping a lookout himself for the approach of' the train from behind.

The defendant had filed a plea of not guilty.

Upon the trial of the action, after the evidence, for both sides had been introduced and each side had rested the case, the defendant moved the court “ to instruct the jury to find for the defendant upon the ground that the negligence, if any, through which the plaintiff was injured was the negligence of the fellow-servants of the plaintiff, for which the defendant is not liable.” After hearing arguments, the court overruled the defendant’s motion, and counsel for the defendant then and there excepted.

After the verdict for plaintiff had been rendered and judgment entered thereon, the defendant obtained a writ of error from the Supreme Court of the Territory to review the rulings of the District Court. Yarious assignments of errors were made, and among them was the eighth, which reads as follows: “ The court erred in not sustaining defendant’s motion to instruct the jury to find a verdict in favor of the defendant, and the defendant not guilty.”

The Supreme Court held that whatever negligence was proved, as against the employés of the defendant, such negligence was that of fellow-sér'vants with the plaintiff, and on that ground the judgment was reversed and judgment ordered in favor of the defendant, with costs;

The plaintiff seeks here a reversal of the last judgment.

We think the decision of the Supreme-Court was right and that the judgment entered thereon must be affirmed.

The cases of Baltimore & Ohio Railroad Company v. Baugh,,

The counsel for the plaintiff has argued before u's that the defendant must be held responsible because the plaintiff had been directed by the foreman, under whose orders he was placed, to look north while he was on the car, and had received the foreman’s assurance that he (the foreman) would warn him of the approach of danger, and that as the foreman failed to do so it was' the failure' of the defendant to do something which it was bound as a master to do in furtherance of the obligation it was under to see that the plaintiff had a reasonably safe place in which to .perform his work. We do not perceive that the doctrine as to the duty of the master to furnish a safe place for the servant to work in has the slightest application to the facts of this case. There is no intimation in the evidence nor is any claim made that the hand car upon which the plaintiff was riding was not properly equipped and in good repair, and in every way fit for the purpose for wThich it was used. It was a perfectly, safe and proper means of transit in and of itself from the station at Albuquerque to the point where tlm plaintiff was going to work. The negligence of the section foreman in failing to note the approaching train and to give the proper warning, so that the car might be taken from the track, was not the neglect of the defendant in regard to the performance of any duty which as master it owed the plaintiff. If the car were rendered unsafe, it was not by reason of any lack of diligence on the part of the defendant in providing a proper car, but the danger arose simply because a fellow-servant of the plaintiff failed to discharge his own duty in watching for the approach of a train from the south.

The judgment must be

Affirmed.

Mr. Justice Harlan dissented.