Where it is the special duty of the foreman of a gang repairing
a bridge to see that the track is unobstructed when a train is
about to cross, although it may be the duty of the men to keep
their tools off the track, it is the foreman's duty to supervise
them, and if, through his negligence, the track is not left
unobstructed and one of the gang is injured, such negligence under
the statutes of Texas in that regard is that of a vice-principal,
and not of a fellow-servant.
Where the facts in the case are that the workman was injured by
being hit by a spike maul which bad been left on the track and
which was struck and thrown by the engine, the fact that the
foreman himself, who is to some extent an interested witness,
testifies that he had looked along the track and saw no
obstruction, is not sufficient to take the question of his
negligence away from the jury.
The plaintiff in error brings this case here to review the
judgment of the United States Circuit Court of Appeals for the
Fifth Circuit, affirming the judgment in the Circuit Court for the
Northern District of Texas, entered
Page 189 U. S. 355
upon the verdict of a jury in favor of defendant in error on the
trial of this action brought by him against the railway company to
recover damages for personal injuries. On the trial, it appeared
that Carlin, the plaintiff below, was in the employment of the
railway company in September, 1898, as a bridge carpenter. On that
day, he, with a number of others forming what is termed the bridge
gang, of which George Welsh was foreman, was employed in making
some repairs on a bridge near the Aledo water tank, not far from
Weatherford, Texas. The bridge was over a creek, and was sixty to
sixty-five feet long. The force got to work on the bridge about ten
minutes after 8 o'clock in the morning under Welsh, the foreman.
The surface of the bridge was plain; the ties were about eight
inches apart, and there was nothing on top of them except the rails
and the guard rails, the rails being of ordinary size, and the
guard rails about ten inches from the rails and parallel with them.
The guard rails were eight inches wide and stood four inches above
the ties, being let down over the ties about two inches, and were
of wood. Sometime after the men had been working on the bridge a
freight train was seen approaching at the rate of from thirty to
forty miles an hour. Within a very few minutes before the train was
seen, one of the workmen on the bridge had in his hand what is
called a spike maul, used for the purpose of driving spike. The
maul was of iron with a handle about three feet long, the hammer
being six, eight, or perhaps ten inches in length, and the handle
went into the middle of the head, which had a double face. Carver
was the man who was using the maul a few minutes before the train
came. The maul weighed about ten pounds. At the time Carver was
using the maul, he had it out on the bridge with him. A witness for
the defendant stated that he had been using the maul on the south
side of the bridge for putting up the staging or scaffolding, and
when he finished he handed it to someone on the top of the bridge,
who handed it to Carver on the north side of the bridge, to spike
on a brace. It was used but ten or fifteen minutes before the
passage of the train. Carver stated he did not remember where he
had put the maul when he had finished using it, but he said
Page 189 U. S. 356
he was always careful to put it out of the way so there would be
no accident. He had nailed the last piece of timber on the bridge
and got down on the ground and was about ten feet from the
plaintiff, and had not been there over three or four minutes when
the train passed. The witness saw no other spike maul or hammer
there that morning than the one which he used, which was the
regular spike maul described by the witness, and which he found
after the train passed.
The train coming from the west was seen some little distance
before it reached the bridge, and the people on the bridge got out
of its way, and, as the train passed over the bridge towards the
east the plaintiff, who was standing a short distance from the east
end of the bridge, was struck by the spike maul on the leg, and was
so badly injured that amputation of the leg above the knee was
necessary, and was performed. The train on its passage across the
bridge struck the spike maul and threw it in the direction that the
train was going with such force toward the plaintiff as to effect
the injury mentioned, although the train was not seen to strike the
maul, nor was the maul seen to strike the plaintiff. All that is
known is that the train passed the bridge, and as it passed the
maul struck the plaintiff, and the handle was broken close up to
the head.
It was customary when workmen were engaged in repairing a bridge
for the foreman to see that the bridge was cleared and unobstructed
whenever a train was about to pass. It was the duty of the workmen
to put their tools out of the way when a train was coming, but it
was specially the duty of the foreman to see that the bridge was
clear, and "that was his business and that was what he was for."
Welsh, the foreman of the bridge gang, testified that he had no
recollection of seeing anyone using the spike maul that morning;
that he had been around all parts of the bridge, both on top and
underneath it, before the train had passed. He says when he saw the
train coming he looked up and down the track to see if everything
was clear, and did not see anything, and stepped one side when the
train was three or four hundred yards from him. He said he had
plenty of time if there had been anything on the bridge to have
taken it off; that, when a man was using tools and got
Page 189 U. S. 357
through with them he was supposed to take care of them and put
them out of the way; that the foreman was liable to be anywhere
about the bridge at any time, and could not be depended upon to be
at any particular place; but if there were men working on top of
the bridge it would be their duty to be on the lookout always, as
they must expect a train at any time. He also said that he was
foreman, and that as bridge foreman he had employed Carlin and had
supervision over him, and had power to employ and discharge him as
well as the other bridge men who were working there that
morning.
The evidence was not disputed that, although it was the business
of each workman to see to it that his tools were not in the way of
an approaching train, yet that it was particularly the duty of the
foreman to see that the bridge was cleared from all obstacles when
a train came.
This is in substance the evidence submitted to the jury upon the
question of the negligence of the defendant.
The judge charged that the burden of proof was upon the
plaintiff to show that the defendant was negligent, and that the
plaintiff was injured thereby; that the defendant was bound to
exercise ordinary care to furnish a reasonably safe place within
which employees could perform their duties; that the foreman of the
bridge gang was, under the evidence, the vice principal of the
defendant company, and that the negligence of which the defendant
was accused consisted in the failure on the part of the foreman of
the bridge gang to use ordinary care to remove, or to see and
remove, the spike maul before the arrival of the train at the
bridge.
The court also charged that, if the jury believed from the
evidence that the spike maul was left on the bridge by a fellow
servant of the plaintiff, and that, at the time the train
approached, the foreman of the bridge gang was the only person upon
the bridge, and that he could, by the exercise of ordinary care,
have seen the spike maul and removed it from the track and from
proximity thereto, and if they believed it was on the track or
within proximity thereto, and if the jury believed that it was the
duty of the foreman to use such care to see that the track was
clear and no obstructions on it, or so near to it as to
Page 189 U. S. 358
be struck by a passing train, and if the jury believed that the
foreman did not use that care, and that the spike maul was struck
by the train and hurled against the plaintiff and caused the
injuries, and if the jury believed it was the negligence of the
foreman in failing to see and remove the spike maul, and if his
negligence in that respect was the direct and proximate cause of
the injuries sustained by the plaintiff, then the court charged
that the plaintiff was entitled to recover; but that, if the injury
was caused by the negligence of a fellow servant, and the foreman
in charge of the bridge gang was not guilty of negligence which
directly and proximately contributed to the injury of the
plaintiff, then the verdict should be for the defendant.
The court further charged that the defendant should not be held
responsible for the consequences of an act of negligence which
could not reasonably be foreseen, and that it was not actionable
negligence to fail to do an act when it would not have been
anticipated by a man of ordinary care and prudence that such
failure to perform the act would result in injury to anyone.
Various requests to charge were made by counsel for the
defendant and refused by the court, not necessary to be here
specifically mentioned.
The jury, as stated, found a verdict for the plaintiff.
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
Two grounds have been urged upon the court for reversing this
judgment and granting a new trial: one was that the negligence of
the railway company, if any, was that of a fellow servant, for
which it was not liable, and (2) that there
Page 189 U. S. 359
was no evidence of the negligence of the foreman in failing to
discover the maul or hammer upon the bridge sufficient to warrant
the jury in finding a verdict for the plaintiff.
The right to maintain this action is founded upon a statute of
Texas, the material sections of which read as follows:
"ART. 4560
g. All persons engaged in the service of any
person, receiver, or corporation controlling or operating a
railroad or street railway, the lines of which shall be situated in
whole or in part in this state, who are entrusted by such person,
receiver, or corporation with the authority of superintendence,
control, or command of other servants or employees of such person,
receiver, or corporation, or with the authority to direct any other
employee in the performance of any duty of such employee, are
vice-principals of such person, receiver, or corporation, and are
not fellow servants with their coemployees."
"ART. 4560
h. All persons who are engaged in the common
service of such person, receiver, or corporation controlling or
operating a railroad or street railway, and who while so employed
are in the same grade of employment, and are doing the same
character of work or service, and are working together at the same
time and place and at the same piece of work and to a common
purpose, are fellow servants with each other. Employees who do not
come within the provisions of this article shall not be considered
fellow servants."
Sayles' Civil Stat. (Tex.) 1897.
With reference to this statute, counsel for the defendant
requested the court to charge the jury that --
"Although Welsh, the bridge foreman, may have been, in law, the
representative of the company, yet, if they find that the act of
examining the track, as the train might be approaching, for the
purpose of ascertaining whether or not any obstruction was upon or
near it, was a duty that may be expected to be performed by any one
of the men, irrespective of his grade or rank -- that is to say, by
the foreman and men alike as occasion and circumstances may require
-- then, in any such event, the act or duty of Welsh in this
respect was one which existed between fellow servants, and
defendant would not be liable for the negligent acts of Welsh in
this respect, if any there were. "
Page 189 U. S. 360
This charge was refused, and counsel for defendant excepted.
The court did charge that the foreman of the bridge gang was,
under the evidence, the vice principal of the defendant company.
This charge was duly excepted to by defendant's counsel.
Defendant contends that, if the negligence which caused the
accident was the failure of the foreman to see the maul or hammer
upon the bridge and to remove it, it was not the failure to perform
a duty peculiar to him, the foreman, and specially imposed upon him
as such foreman within the meaning of article 4560
g,
because it was a duty resting equally upon all the members of the
bridge gang. The testimony in regard to this question leaves no
doubt as to the duty of the foreman, although it also appeared
that, when a man was using tools and got through with them he was
supposed to put them out of the way where a train would not strike
them, and it was his business to do so. The evidence showed in
addition that it was the special business of the foreman to see
that the track was unobstructed on the bridge when a train was
about to cross, and that, although the men were supposed to see
that the track was clear, it was the foreman's business to
supervise them and see that the men left a clear track as the train
came on. This was his duty as foreman, and not as fellow workman,
and the duty of care on the part of the workmen under him to keep
the tools off the track when the train came on the bridge in no
degree lessened the duty of the foreman to see that the men under
him did as they ought, and that a free and unobstructed track was
left for the train. In other words, it was the special duty of the
foreman, as such, to see that the men performed their duty.
The negligent act of the foreman did not arise in the
performance of the duty of a mere servant, although each servant
was under an obligation to be careful, but it was the negligent act
of the vice principal in the performance of his duty as such. As it
was the special duty of the foreman to see that the men performed
their duty, his neglect so to do was the neglect of a duty which he
owed, not as fellow servant, but as vice principal within the
statute above cited.
Upon the second ground, we are of opinion that there was
Page 189 U. S. 361
evidence sufficient to go to the jury upon the question of the
negligence of the foreman in failing to discover the maul upon the
bridge immediately prior to the passage of the train. The foreman
himself swears that he did look along the track just prior to the
coming of the train, and that he did not see any obstruction on the
track, and did not see the spike maul in question. Whether he
looked or not is, under the evidence, one of the material facts in
the case. He says that he did, but we are of opinion that other
facts proved in the case were of such a character as to make it
proper to submit the question to the jury. The foreman's evidence
was that of a somewhat interested witness. If the foreman did in
fact neglect to perform his duty by looking over the track just
prior to the coming of the train for the purpose of seeing that the
bridge was clear of obstructions, it might be quite a serious
matter for him in his future relations with the company. At any
rate, no man is an absolutely disinterested witness where his
testimony relates to the question of the performance or
nonperformance of a duty which he owed on account of the position
which he occupied. It was therefore a question for the jury as to
what measure of credence should be given to his testimony. Of
course, the mere absence of evidence that the foreman did his duty
would not be equivalent to evidence, direct or circumstantial, that
he did not, and it rested with the plaintiff to show negligence of
the foreman for which the defendant would be liable.
But there are certain facts proved in this case which we think
rendered it necessary to submit the question of negligence to the
jury notwithstanding the testimony of the foreman. We have here a
bridge not more than sixty or sixty-five feet long -- an open top
bridge, the surface of which was plain. The ties for the rails were
the usual distance apart, and there was nothing on top of them
except the rails themselves. The guard rails were ten inches from
the track and parallel with it, and they stood up about four inches
above the ties. There was therefore nothing to obstruct or prevent
the view of the length of the bridge by anyone at either end, and
nothing to prevent the discovery of the maul if the glance of the
individual were anything more than casual or formal. The maul could
not
Page 189 U. S. 362
have been hidden between the track and the guard rails so as not
to be above the track, for if the maul were lower than the track,
the train could not have hit it, as it is perfectly clear that
anything lower than the surface of the track could not be struck by
the train. So it would seem quite obvious that, if anyone in the
position of the foreman had looked, it would have been possible for
him to have discovered this maul if it were there. Was it there?
Workmen had been using the maul on the bridge during the morning
and a few moments, not more than ten or fifteen minutes, prior to
the crossing of the train. The maul was struck by it and hurled
with great force, sufficient to break the handle, against the
plaintiff, who was standing near the east end of the bridge. The
man who was known to have used the maul a few minutes before the
arrival of the train says himself that he has no recollection of
what he did with it. Now whether the maul were left exactly on the
bridge or just off the bridge and so near the track as to be struck
by the passing train it is not necessary to determine, because if
it had been left in a position just off the bridge and yet so near
the track as to be struck by the train, the failure of the foreman
to see it and have it removed was the same as if it had been on the
bridge. The maul being left so that it was struck by the train and
hurled against the plaintiff, the failure of the foreman to see it
might have been found by the jury to be a negligent failure, and,
its being his duty to see that the track was kept clear for the
passage of trains, that failure was a neglect which was the
proximate cause of the injury. To be sure, it was negligence on the
part of the servant who left the tool there in the first place, but
after such negligence had occurred, the duty of the foreman arose,
and he had plenty of time in which to perform it, to overlook the
bridge where the track was and see that there was no obstruction
for the passing train, and his failure to look, or, looking, to
discover the obstruction, thus became the immediate and proximate
cause of the injury which followed.
There is no other cause assignable for this injury than the fact
that the train did strike the maul, and that fact is proved from
the fact that it was thrown in the direction in which the train was
going. Counsel for the defendant admits that the evidence
Page 189 U. S. 363
shows that fact, but he avers that it does not appear that the
maul was in such a position as to convict the foreman of negligence
in not discovering it, and as to that fact counsel insists that the
negligence of the foreman is disproved by the uncontradicted
testimony.
The facts already stated rendered it necessary, in our judgment,
to submit the question to the jury as to the negligence of the
foreman, even although he testified that he looked and did not
discover any obstacle on the bridge.
These two are the propositions particularly argued before us. We
do not see in them any ground for disturbing the verdict of the
jury.
We have looked at the other exceptions taken in the course of
the trial, and are of opinion that they do not show any error
requiring a reversal of the judgment, and it is therefore
Affirmed.
