South Florida Railroad Company, Plaintiff in Error, vs. Edward D. Weese, Defendant in Error, 32 Fla. 212

Mabry, J.: The overruling of the demurrer to the declaration is assigned as error here, but counsel for plaintiff in error have not discussed this point in their brief, and we will consider it as abandoned. The refusal of the court to permit counsel for defendant to file a plea to the jurisdiction of the court before the trial, is another assignment of error. The -court also refused to charge the jury at the instance of the defendant, that if the inj ury occurred in Hillsbor-ough county, and not in Orange . county, the verdict should be for the defendant.

The suit was instituted in Orange county, and it is alleged in the declaration that the injury to the plaintiff for which he sues occurred in Hillsborough county. The defendant is a railroad company owning and operating a railroad from Sanford, in Orange county, to Tampa, in Hillsborough county.

The return of the sheriff on the summons shows that it was served by ‘‘delivering a true copy to Rudolph, a person over the age of sixteen, at the same time showing her the origi- . nal, at the superintendent’s office of the South Florida Railroad.” The defendant appeared by attorney and also filed a demurrer and the pleas mentioned in the statement accompanying this opinion.

The defect in the service of the summons, if any existed, was obviated by the appearance and pleading on the part of the defendant, and hence there was no ground to be allowed to plead to the jurisdiction of the court on account of the service of the summons. The action here is for personal injuries to the plaintiff, and is transitory in its nature, and not local either at common law or by any statute in force in this State at the time, further than to confine the action to some county through which the road ran.

Section 33 of

Chapter 1989, laws •of 1874, provides that all actions against any railroad ■corporation created by the. laws, or operating a railroad, in this State, shall be brought in some county through which such road runs. The action being transitory, the court had jurisdiction to entertain the suit in any county through which the defendant’s road ran, and the defendant was brought. properly before the court.

The appearance of the defendant and pleading to the merits of the action in the Orange Circuit Court gave that court jurisdiction, and we think no error was committed in refusing the application of defendant to file the plea to the jurisdiction of' the court. Illinois Central R. Co. vs. Swearingen, 33 Ill., 289; Northern Central Co. vs. Schall, 16 Md., 331; Speer vs. Missouri, Kansas & Texas Ry. Co., 23 Kansas, 571; Glen vs. Hedges, 9 Johnson, 67. It is the duty of the court at any time before verdict to allow all necessary amendments in the pleadings, in order that the merits of the case may be .presented.

Robinson vs. Hartridge, 13 Fla., 501; Livingston vs. Anderson, 30 Fla., 117, 11 South. Rep., 270. But in the present case the plea desired to be filed would not have availed defendant if it had been filed in time.

On the subject of fellow-servants the court instructed the jury as follows, viz: “Whether Coleman, the engineer, whose act is said to have caused the injury to Weese, the plaintiff, was a fellow-servant with the plaintiff, is a question of fact for you to determine under the law as'" I shall give it to you in charge. * * It is a general rule of law that one fellow-servant- can not recover'from a common master for injuries done to him by the negligence or carelessness of another fellow-servant, when the master himself is not at fault; but the employes of a common master are not fellow-servants, for the law defines fellow-servants to be those who are engaged in working together or in the same line of employment.

Hence it is not every employe of a common master who is forbidden to recover for injuries caused by the carelessness of another employe. * * Those who are working together in the same line of employment under a common master are fellow-servants, but the relation does not extend to all the employes of a common master. * * The alter ego of a corporation is one who stands in the place of the corporation itself, and although an employe of the company is not a fellow-servant with those whom he controls or directs, his act in contemplation of law, is the act of the company, and they can. not avoid responsibility for it on the ground of fellow-service, where injury occurs.

It is for you to determine from the evidence whether Coleman stood in the relation of the alter ego of the company toward Weese at the time of the accident. * * One who is placed by the master in control of a co-employe and said co-employe is made subject to his orders, stands in the place of-the master and is not a fellow-servant with those under his orders. * * If the jury believe from the evidence that the relation of fellow-servant existed between plaintiff and the engineer, and the common master was not itself guilty of negligence, they will find for the defendant.” The court refused to give the following instructions requested by the defendant on the subject of fellow-servants, viz: “It is the duty of the court to determine who are fellow-servants in any given case involving the question as to who are fellow-servants.” “The engine wiper employed to wipe engines and fire up the same in the yard where shifting and making up of trains were done, is a fellow-servant with the engineer operating the engine in doing such shifting, and can not recover for any injury which he may have received through the negligence of such engineer whilst both were engaged in the line of their respective duties.” “If the jury believe from the evidence that the plaintiff at the time of his alleged injury, if any he received, was in the employment of the defendant as an engine wiper in the yard of the defendant at Tampa, and that the negligence of the yardmaster or the engineer working under said yardmaster at Tampa in shifting and making up the trains, or doing other similar work, caused said injury, then the relation of fellow-servant existed between the. plaintiff and such yardmaster and the engineer, and the plaintiff can not recover for such injury.” The giving of the charges above, and the refusal to give those requested by defendant, are assigned as error here.

In Parrish vs. Pensacola & A. R. R. Co., 28 Fla., 251, 9 South. Rep., 696, we held that a master was not liable to one servant for the negligence of a fellow-servant when engaged in a common work or in the same general undertaking, and that an engineer and fireman, 'in charge of an engine drawing cars used 'in getting gravel to repair the road bed, were fellow-servants with shovelers of gravel on the cars, while the latter were under the control and direction of a separate boss and not subject to the control of the employes in charge of the engine.

The charge given to the jury in the Parrish case announced that a fellow-servant is one engaged with another under a common master in the same common employment, so that they are brought in contact with each other, notwithstanding they are subject to the orders and under the exclusive control of separate bosses and in different work in the same service. This charge as applied to the facts of that case was held to be correct.

In view of the growth and development of business enterprises necessitating their division into separate departments, some courts have established what is called the separate department distinction, and maintain that it is not enough to constitute fellow-servants that they were performing parts of a common undertaking not bringing them together, but it is essential, either that they were actually co-operating at the time of the injury, in the particular business in hand, or that their usual duties should bring them into habitual association, so that they can exercise an influence one upon the other for their mutual protection.

The Illinois •court seems to take this view, and also those of Kentucky, Georgia and Virginia, and probably a few •others. Louisville, C. & L. R. R. Co. v. Cavens, 9 Bush, 559; Nashville & Chattanooga R. R. Co. and Memphis & Charleston R. R. Co. vs. Carroll, 6 Heisk., 347; Nashville & Decatur R. R. Co. vs. Jones, 9 Heisk., 27; Cooper vs. Mullins, 30 Ga., 146.

The rule that seems to be sustained by the weight of authority is, that it is not necessary in order to bring a case within the rule that an employer is not responsible to those in his employ for injuries caused by the negligence or misconduct of a fellow-servant, that the servant who causes and the one who suffers the injury should be at the time engaged together in the same particular work; it is sufficient if they are in the employment of the same master, engaged in the same common enterprise, and both employed to perform duties tending to accomplish the same general purpose". Wright vs. New York Central R. R.

Co., 25 N. Y., 562; Texas & Pacific Ry. Co. vs. Harrington, 62 Texas, 597; Holden vs. Fitchburg R. R. Co., 129 Mass., 268; Kirk vs. Atlanta & Charlotte Air-Line Ry. Co., 94 N. C., 625; Quincy Mining Co. vs. Kitts, 42 Mich., 34; Foster vs. Minnesota Central Ry. Co., 14 Minn., 360; New York, Lake Erie & Western R. R. Co. vs. Bell, 112 Pa. St., 400; Slattery’s Admr. vs. Toledo & Wabash Ry. Co., 23 Ind., 81; Brodeur vs. Valley Falls Co., 16 R. I., 448; Gormly vs. Ohio & Mississippi Ry. Co., 72 Ind., 31; Baltimore Elevator Co. vs.

Neal, 65 Md., 438; Wood’s Master and Servant, sec. 425; McKinney on Fellow-Servants, sec. 9. Tlie facts in the Parrish case showed that the negligent and injured servants were brought together in the common work of moving the gravel, and hence the charge of the court as applied to such a state of facts was not error.

" If we eliminate the view that Coleman, the negligent engineer in the case before us, was the vice-principal of the defendant as to Weese, the plaintiff, it. is evident that the relation of fellow-servants existed between them at the time of the injury, according to the rule announced by us in the Parrish case. They were employed by a common master in a common employment, and were associated with each other in the performance of their respective duties.

It was Coleman’s duty under the direction of the yardmaster to manipulate the engines in the yard in doing the necessary shifting and making up of trains preparatory to leaving. It was the duty of Weese to wipe the engines in the same yard and fire them tip before leav-ingtime. They were under different bosses, but still they were engaged in a common work or in the same general undertaking. They would be regarded as fellow-servants under the decisions of some of the courts holding to the separate department limitation. This will be illustrated by two cases decided in Illinois. In the case of Chicago & Alton R. R.

Co. vs. Murphy, 53 Ill., 336, the injured servant was one of several workmen under the charge of a foreman whose duty it was to examine trains on their arrival at the station and make all needed repairs. The injured servant had been engaged in repairing a car in a freight train, and, having finished this work, started to the work shop where they kept tools, when, in passing down between the rails of the main track, he was struck by a switch engine and so injured that he subsequently died.

The switch engine was constantly engaged on the station grounds, and although under the immediate control of a yardmaster, it was used for whatever purpose it might be required, among others, for switching such cars as were undergoing repairs. The engineer in charge of this engine and the men engaged in repairing the cars were held to be strictly fellow-servants, and the common master not liable for the negligent acts of each ■other. But in Chicago & Northwestern R. R. Co. vs. Moranda, 93 Ill., 302, where the injured servant was under duty to repair and keep in order a

section of railroad track, and while in the performance of this ■duty an express tráin passed by at great speed, and having stepped aside to avoid the train, said servant was struck .by a large lump of coal carelessly cast from the tender by the fireman ón the passing train, it was held that the fireman on the express train and the servant, whose duty it was to repair the track, were not fellow-servants. It was held in the case of R. & D. R. R. Co. vs.

Norment, 84 Va., 167, that a yardmaster or conductor was not a fellow-servant with an •overhauler — car repairer — in the same yard, though the latter was not under the control of the former. They were regarded as employed in different departments of service. The Yirginia court holds to the ■doctrine of the separate department limitation, to which we have above referred. McKinney on Fellow Servants, sec. 72, and notes.

Leaving out of view the ■question of vice-principal, Weese and Coleman were, us shown by the evidence before us, under the rule in the Parrish case, fellow-servants employed by a common master and engaged in the same general undertaking. But the court instructed the jury that “one who is placed by the master in control of a co-employe, and said co-employe is made subject to bis orders stands in place of the master, and is not a fellow-servant with those under his orders;” and that the jury must determine from the evidence whether or not Coleman occupied the relation of vice-principal of the company as to Weese.

The defendant’s liability, it is evident, was submitted, to the jury upon the hypothesis, if sustained by the evidence, that Coleman was the alter ego of the company so far as Weese’s employment was concerned. This court has never decided whether or not the rule established by many courts in reference to vice-principals prevails in this State. There are many decisions of the highest authority adhering to such a rule, but it must be admitted that there is grave conflict of authority on this point. McKinney on Fellow-Servants, sec. 43, et seg.

This rule as stated by Beech on Contributory Negligence, sec. 32o, is as follows, viz: “Where the negligent servant is in his grade of employment superior to the injured servant, or where one servant is placed by the employer in a position of subordination, and subject to the orders and control of another in such a way and to such an extent that the servant so placed in control may reasonably be regarded as representing the master as his alter ego or vice-principal, when such inferior servant, without fault and while in the discharge of his duties is injured by the negligence of the superior servant, the master is liable in damages for the injury.” The Supreme Courq. of the United States has given the weight of its authority to this view.

C., M. & St. P. Ry. Co. vs. Ross, 112 U. S., 377. The testimony before us did not in our judgment authorize the submission of the case to the jury on the theory that the company was liable for the negligence oí the engineer, Coleman, as its vice-principal, even if such a rule obtains in this State. Weese testified that he ivas over 21 years old when employed to wipe engines and fire them up in the Tampa yard, and it is entirely clear that he was engaged in this business when he received the injuries for which he sues.

It is true he testified that the master mechanic at Tampa whose name was Instrom, told him to go to Coleman for instructions in his (Instrom’

s) absence, and that in his absence Coleman overseed his work and took Instrom’s place; also that Coleman showed him, Weese, when he was first employed how to ‘ ‘chock’ ’ the engine, and after the gauge was changed, and in the absence of Instrom, informed him, Weese, that he would have to continue to wipe engines on the main line and side track without pits until they were prepared. But Weese says himself, and this is all the testimony there is on the subject, that all he knew about Coleman’s being placed over him ■was what Instrom said about going to Coleman for instructions.

Conceding that it is shown that Weese in the performance of his duties was under the directions of the master mechanic at Tampa, or, according to the testimony of the superintendent, which is not inconsistent with that of Weese, under the immediate control of the inspector at Tampa, who was himself under the master mechanic, it does not appear that he was engaged at the time in‘any service by the direction of either the inspector or Coleman outside of his regular employment, or that he ever went to Coleman for any instructions in reference to his duties at the time of the injury.

But whatever may be the effect of the direction of Instrom to Weese to go to Coleman for instructions in the performance of his duties, it is made to appear beyond question that Coleman’s act that resulted ill Weese’s injury was performed as servant in the line of his regular employment, and he was not therein performing any duties devolving upon the principal. The negligent act of Coleman complained of related solely to his duty as co-laborer with Weese, and there is an absence of connection between the supposed grant of authority to Coleman over Weese, and the injury that happened to the latter.

McKinney on Fellow-Servants, sec. 42; Chicago & Alton R. R. Co. vs. May, 108 Ill., 288; 15 Am. & Eng. R. R. Cases, 320. There is no complaint that Coleman was not a competent man for his place, and that the company was negligent in employing him as engineer in the yard at Tampa. The theory that the defendant company placed Coleman over Weese as its vice-principal in respect to the performance of their duties at the time, is without foundation in the evidence.

It has for its support only the instruction, given by the inspector at Tampa, who was Weese’s boss, to go to Coleman, the yard engineer.under the direction of the yardmaster for instructions when the yardmaster was absent. It is entirely clear from the evidence that there was nothing in the employment of Weese and Coleman by the company to subject the former to the control and subordination of the latter, and, as before stated, at the time of the injury they were performing duties strictly within the line of their respective employments.

Coleman not being in any sense the vice-principal of the company as to Weese in the duties he was performing at the time of the injury, it follows from what has already been said that they were fellow-servants under a common master engaged in a common undertaking. The court, then, was in error in submitting the case to the jury on the theory that Coleman was the alter ego of the company, because there was no testimony to authorize a finding on this ground.

Prom this standpoint it becomes unnecessary for us to say whether or not the rule above referred to obtains in this State, and if so whether or not the charges given by the court to the jury coi - rectly stated the rule on this subject. The court should not have given any charges at all on this subject upon the state of facts as shown to us, and what was said, we think, was calculated to mislead the jury.

The second and third instructions requested by defendant on the subject of fellow-servants, and set out in a former part of this opinion, contained correct propositions of law as applied to the facts of the case, and should have been given. For these errors a reversal of the judgment must follow, but a ruling on the other branch of the case makes it proper for us to say something in reference to other grounds upon which a recovery is sought to be had.

The declaration alleges that no pit was prepared in which the plaintiff could stand while wiping engines, and no signal lamp was furnished him to hang out as notice and warning to other employes while engines were being cleaned. It is implied in the contract of employment between the employer and employe that the latter assumes the risks and perils ordinarily attending or incident to the business in which he voluntarily engages for hire, and this includes the risk of injuries resulting from the carelessness or misconduct of fellow-servants engaged in a common work or general undertaking.

But the law is well settled that a master must not expose his servant when acting in the line of employment to dangers and hazards against which he may be protected by reasonable care and diligence on the part of the master. Among the positive duties resting upon the master to the servant is the obligation to exercise such reasonable care as prudence and the exigencies of the situation require in providing the servant with safe machinery and suitable instrumentalities, and a reasonably safe place in which to work.

The negligence of the master in this, respect is not one of the perils or risks assumed by the employe in his contract of employment, and he-has the right to insist that the master shall strictly comply with his obligation in this respect. The au-horities are not inharmonious on this point. Hought vs. Railway Co., 100 U. S., 213; Davis vs. Central Vermont R. R. Co., 55 Vt., 84; McKinney on Fellow-Servants, secs. 24, 25, and authorities cited in notes.

But while the rule just announced is clearly established, it is also well settled that it is a complete answer to the claim for damages resulting from a failure to furnish suitable instrumentalities and a safe place to work, that the .injure 1 servant had full knowledge of the situation, and engaged in the employment or continued therein without objection or protest and without any promise or assurance on the part of the employer to provide better.

There is some conflict of authority on this point, but we think it can be safely stated that the prevailing judicial view is, that where a servant voluntarily engages in a seryice for another, and has full knowledge that the instrumentalities he is to use and the situation in which the service is to be-performed are dangerous, and the danger therefrom is apparent, and he makes no protest and his employer does not mislead him in any way as to these matters, he assumes the risks ordinarily incident to that employment. and cannot recover for injuries resulting therefrom.

The exception to the rule was not established to relieve an employer from the duty due to-his employe to furnish him safe and .r .table instru-mentalities with'which to work, but its justness is found in the consideration that where an employer1 does not furnish safe implements and does not pretend to do so, and this fact is fully known to the employe, he waives this duty on the part of the employer and should not be permitted to recover for injuries received while engaging in such service without such, instru^ mentalities. Indianapolis & St. L. R. Co. vs. Watson, 114 Ind., 20, 33 Am. & Eng. R. R.

Cases, 334; Hough vs. Railroad Co., supra; Galveston, H. & S. A. Ry. Co. vs. Lempe, 59 Texas, 19, 11 Am. & Eng. R. R. Cases, 201; Umback vs. Lake Shore & Michigan Southern Ry. Co., 83 Ind., 191, 8 Am. & Eng. R. R. Cases, 98; De Forest vs. Jewett, 88 N. Y., 264, 8 Am. & Eng. R. R. Cases, 495; Campbell vs. Pennsylvania R. Co., 24 Am. & Eng. R. R. Cases, 427; Lynch vs. Sagamore Manufacturing Co., 143 Mass., 206; Buzzell vs. Laconia Manufacturing Co., 48 Maine, 113, 77 Am. Dec., 212 and notes; Galveston, H. & S. A. Ry. Co. vs. Drew, 59 Texas, 10; Kroy vs. Chicago, R. I. & P. R. R. Co., 32 Iowa, 357; Muldowney vs.

Illinois Central R. Co., 39 Iowa, 615; Wood’s Master and Servant, secs. 326, 327; McKinney on Fellow-Servants, sec. 30.

The court instructed the jury that the rule of law which exempts a master from responsibility to the servant for injuries received from the negligence of his fellow-servant does not excuse the employer from the exercise of ordinary care in supplying and maintaining suitable instrumentalities for the performance of the work required, and that it was the duty of railroads to provide all necessary and usual means for the-protection of their employes against injury by accident while engaged in their duties.

The defendant excepted to this charge, and it is assigned as error. 'The point oí objection is not that the charge does not contain within itself a correct statement of a legal proposition, but that it was erroneous as applied to the facts of the present case, as Weese fully knew the ■dangerous position which he was occupying, and with full knowledge of this situation he continued to wipe •engines in the Tampa yard, although no pits were pre-, pared.

If the court had refused to instruct the jury upon being requested to do so, that Weese -was not en • titled to recover if the testimony showed that he was within the exception to the rule, it would have been error. But the court also instructed the jury that •when a servant enters into the employment of another he is presumed to have contracted with reference to ..allhazards and risks ordinarily incident to the employment and cannot recover for injuries resulting to him therefrom.

Also, a servant is bound to see patent and obvious defects in the instrumentalities of the business in which he is engaged, and when he comes into the -service of a person or continues in such service knowing that the instrumentalities employed have obvious .and patent defects, or has equal oportunity with the master of knowing that such instrumentalities are unsafe and dangerous, he takes the risk of their use upon himself and he cannot hold the master responsible for injuries resulting therefrom.

The two last mentioned •charges were given by the court at the instance of the defendant, and no assignments of error are based upon them. When the three charges are considered together it leaves no room for objection on the ground that the first had the effect to mislead the jury.

For although they were told that the defendant’s exemption from liability to one servant on account of the negli.gence of a fellow-servant did not excuse it from furnishing suitable instrumentalities with which to work, still they were told that if the plaintiff with full knowledge of the dangerous situation engaged in the-service he could not recover for injuries res lilting therefrom.

The court was also requested to give the following charge, the refusal to give which is assigned as error, viz: “If the jury believe from the evidence that the plaintiff, Weese, was injured while engaged in the-regular line of his duties, by an engine under which he was working, being moved whilst he was underneath the same, and should further believe that there-was no pit where such engine was placed in which he, the said Weese, could stand whilst performing such duties, for which he was employed, but that he knew this at the time he went under the engine, and should believe further that the said Weese had been accustomed for several days or two weeks prior to receiving the injury, if any he received,, to perform said duties, not having a pit to stand in at the time he was so engaged in the performance of said duties, and knew'or should have known that the place in which he was so engaged in performance of said duties was dangerous, then he cannot recover for any injuries so received, and the jury must find for the defendant.” This, charge is nothing more than the application of the principle of law already given to the jury by the court to the facts of the case under consideration, and we-think it should have been given.

The court had stated to the jury, and it was a correct proposition, that a servant is bound to see patent and obvious defects in the instrumentalities with which he works, and when he goes into the service of a person, or continues therein, with full knowledge that the instrumentalities employed have obvious and patent defects, he takes the risk of their use upon himself, and cannot hold the master responsible for injuries resulting therefrom. Under the testimony the defendant had the right to have this charge given to the jury.

The court charged the jury on the law applicable to contributory negligence, but nothing need be said in reference to these charges. What has been said covers the merits of the controversy presented here, and enough to dispose of the case. It is to be noted that this, case arose prior to the passage of

Chapter 3744, laws of 1887. For the reasons given the judgment must be reversed. It is therefore ordered that the judgment be reversed and a new trial awarded.