Putnam v. Pacific Monthly Co.

On Rehearing.

( 136 Pac. 835 .)

En Banc. Opinion by Mr. Chief Justice McBride.

7, 8. Upon this rehearing we carefully examined this case, and, while a majority of the court are still of opinion that it should be reversed, we think the opinion should be modified in two respects: (1) In holding that the relation of the defendant to the deceased was that of master and servant, and that the degree of care required of defendant was only that of ordinary and reasonable care exacted from such relation; and (2) in holding that the relation of fellow-servants engaged in the same common employment existed between deceased and the person operating the elevator. The testimony shows that the deceased was employed by defendant as a stenographer on the fourth floor of the building; that her duties began at 8:30 in the morning, and that the accident happened at 8:20. At the time of the accident her time was her own. She was not the servant of the defendant until it was time for *55 her to begin such, service. This is not a case like many of those cited in the opinion, where a laborer going to his work is injured in the course of transportation. In such cases the time so occupied is the time of the employer, and is paid for by him. The service is being rendered just as effectually by the employee when he is being transported from one section of the road to another as when he is laying ties or grading. It is true that the complaint alleges that deceased was compelled to use the elevator in order to reach the room where she was employed, but this allegation is denied, and the testimony discloses that there was a stairway which she could have used instead of the elevator. But holding plaintiff strictly to the pleading, and assuming for the purpose of this case that it was necessary for deceased to use the elevator in order to reach the place where her work was to be performed, does not, in my view of the case, make her a servant of the defendant while so using it, or differentiate her in any way from any other passenger thereon. Primarily the elevator was built and operated for the use and benefit of the defendant. If it enabled persons having business with defendant, or its tenants, to reach the various floors of the building with less exertion, or more expeditiously, this was a profit to defendant in the way of an increased number of tenants, customers or business. If it enabled employees to get from one floor to another more expeditiously, this would also be a matter of convenience and profit to defendant. It was placed there just as a stairway would have been, and for the same purpose, namely, for the use and profit of the employer. We are of the opinion that, under the circumstances here disclosed, the deceased was as much a passenger as any other person using the elevator, and that the degree of care due her was just the same that defendant owed to any person not in its *56 employ, who might have seen fit to use it in order to transact business with the defendant.

This measure of care is fully defined by Mr. Justice Moore in Kelly v. Lewis Investment Co., 66 Or. 1 ( 133 Pac. 826 ), as follows: “By the great weight of authority, however, it has been determined that a landlord who for a consideration stipulates to maintain and operate, for the accommodation of his tenants and their visitors, a passenger elevator into which the public are impliedly invited to enter to be carried to desired floors is subject to the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance, the same as is imposed by law upon public carriers, of passengers” (citing Hutchinson, Carriers (3 ed.), § 100; 1 Thompson, Neg., § 1078; Sweeden v. Atkinson Imp. Co., 93 Ark. 397 ( 125 S. W. 439 , 27 L. R. A. (N. S.) 124); Treadwell v. Whittier, 80 Cal. 574 ( 22 Pac. 266 , 13 Am. St. Rep. 175 , 5 L. R. A. 498); Deposit Co. v. Sollitt, 172 Ill. 222 ( 50 N. E. 178 , 64 Am. St. Rep. 35 ); Springer v. Ford, 189 Ill. 430 ( 59 N. E. 953 , 82 Am. St. Rep. 464 , 52 L. R. A. 930); Ohio Valley Trust Co. v. Wernke, 42 Ind. App. 326 ( 84 N. E. 999 ); Cubbage v. Estate of Youngerman, 155 Iowa, 39 ( 134 N. W. 1074 ); Kentucky Hotel Co. v. Camp, 97 Ky. 424 ( 30 S. W. 1010 ); Goodsell v. Taylor, 41 Minn. 207 ( 42 N. W. 873 , 16 Am. St. Rep. 700 , 4 L. R. A. 673); Lee v. Publishers Knapp & Co., 155 Mo. 610 ( 56 S. W. 458 ); Becker v. Lincoln R. E. & Bldg. Co., 174 Mo. 246 ( 73 S. W. 581 ); Luckel v. Century Bldg. Co., 177 Mo. 608 ( 76 S. W. 1035 ); Quimby v. Bee Bldg. Co., 87 Neb. 193 ( 127 N. W. 118 , 138 Am. St. Rep. 477 ).

9. If the deceased was a passenger and not a person then engaged in the service of the defendant, defendant is liable for the negligence of its operator, unless the deceased was a fellow-servant engaged in the same common employment with him, which brings us to the second error alleged in the petition for rehearing.

*57 The definition of the term “fellow-servant” has gradually undergone a change in favor of the employee. In the early history of jurisprudence a suit for damages by a servant against his master, while it was tolerated, was always looked upon with disfavor by the courts as a sort of moral petit treason, and every limitation that judicial ingenuity could devise was interposed to make recovery difficult; but in the progress of years this strictness has greatly relaxed, and the doctrine of the assumption of risk and negligence of fellow-servant has been placed upon a decent and logical basis. The rule as to who are fellow-servants, when reduced to its lowest terms, may be stated as follows: “The master is not responsible for an injury inflicted upon his servant by the negligence of a fellow-servant engaged in the same common employment. ’ ’ This is the sum of all the modern authorities, and should not be lost sight of in the midst of all verbiage in which it is sometimes obscured. The definition means something, and every word and phrase means something. It is not enough that the parties should be fellow-servants. The governor of the state and the janitor of the statehouse are in a sense fellow-servants of the state; the chief attorney of the greatest railroad in the state is in a sense a fellow-servant with the conductors and brakemen of the same road. And right here is where many courts have gone wrong, by omitting or forgetting the concluding and important qualification of the rule, namely, that the fellow-servants must be engaged in the same common employment.

The reason of this rule is clearly and succinctly stated in 4 Thompson, Negligence, Section 4970, in the following language: “It is perhaps on the question, What is common employment? that we find the greatest divergencies of opinion. In a few jurisdictions the rule under consideration is restricted to eases where the servant injured and the servant inflicting *58 the injury are so closely associated that they can watch over each other’s conduct, and, if necessary, report it to the common master. The reason for the general rule is one of public policy. Its object is to secure to the public a more faithful service from the employees of railway companies, navigation companies, and other companies conducting a business wherein the safety of the public is involved, by making it the interest of each one of the employees of such persons or corporations to look after and encourage carefulness and fidelity in all the rest. This reason can have no application to employees whose situation allows them no corrective influence over each other; but where this doctrine obtains and the servants are so disassociated that the purpose of the rule is defeated, they are not deemed fellow-servants within the meaning of the rule under consideration, but the rule of respondeat superior applies. # * It has been reasoned that an application of the fellow-servant rule which would put one servant in the situation of accepting the risk of the negligence of another servant so remote from him that there is no opportunity of exercising that superintending care which the rule is intended to enforce would operate as a penalty, and would be sheer cruelty.” This proposition is so clearly in accord with justice and reason that it does not require the citation of authorities to support it. The authorities cited by the learned author above quoted abundantly support the text. Now let us make a concrete application of the text to the case in hand. The deceased was a girl, a stenographer, to whom, presumably, the machinery of an elevator was an unknown quantity. She had not and could not have that intimate knowledge of the working of an elevator, or acquaintance of the person in charge of it, that would or might lead her to suggest caution in the manner in which he should perform Ms duties, neither would she be likely to have *59 that acquaintance or skill in the operation of the machine necessary to enable her to judge as to whether or not it was carefully handled. She was engaged in mental and clerical work; the operator was engaged in a different and mechanical work, about which she knew nothing. Except for the fact that they were hired by the same corporation there was nothing in common between them, and to hold that deceased assumed the risk of the negligence of the person operating the elevator is to hold that all persons serving under the same employer are fellow-servants in a common employment, which is contrary to justice and enlightened precedent. A stenographer employed by the Southern Pacific Eailroad Company in San Francisco is not a fellow-servant engaged in the same common employment with the janitor of the offices of the same company in Portland, and no legal fiction can make him so; and by the samé token the deceased did not sustain that relation to the person operating the elevator. This being so, the deceased sustained the same relation to the operator of the machine that any other person having business with the defendant would have sustained, which is, in substance, the same relation that a passenger sustains to the conductor or engineer of a train.

The recent ease of Thompson v. Northern Hotel Co., 256 Ill. 77 ( 99 N. E. 878 ), is exactly in point on this question. There the injured person was a maid in charge of the ladies ’ toilet at the hotel, and her duties required her to make several daily trips in the elevator. It is evident that her use of it was quite as frequent as that of the deceased in the case at bar, if not more so. There, as in the case at bar, she was injured by the negligence of the operator of the elevator, and there, as here, the defendant urged that she and the operator were fellow-servants. The court disposed of this contention in the following language: *60 “Plaintiff in error next contends, under this assignment of error, that defendant in error and the operator of the elevator were fellow-servants. The definition of fellow-servants is a question of law: Hartley v. Chicago & Alton R. R. Co., 197 Ill. 440 ( 64 N. E. 382 ). The particular relation of two servants of the same master in a given case is a question of fact; hence whether two servants of a common master are fellow-servants depends upon the facts of the particular relation and the application of the law defining fellow-servants to those facts, and in that sense the question is a mixed question of law and fact: Lalce Erie & Western R. R. Co. v. Middleton, 142 Ill. 550 ( 32 N. E. 453 ). Under the rule established by numerous decisions of this court, to create the relation of fellow-servants the servants must be directly co-operating with each other in a particular work at the time of the injury, or their usual duties must be such as to bring them into habitual association, so as to afford them the power and opportunity of exercising a mutual influence upon each other promotive of proper, caution: Bennett v. Chicago City Ry. Co., 243 Ill. 420 ( 90 N. E. 735 ). There is no basis whatever for the contention that defendant in error and the operator of the elevator were fellow-servants under the first branch of the rule. They were not co-operating with each other in any particular work. They were in different departments and under different superiors. The fact that one operated the elevator upon which the óther rode in the discharge of her duties did not bring them into co-operation with each other in the performance of the duties of either. Nor do we think that the fact that defendant in error frequently rode up and down on the elevator which Le Roy Williams was operating can be said to have brought them into such association with each other in the discharge of their duties that they might reasonably exercise an influence over each *61 other promotive of care. The duties of these two employees were so totally different that neither could he supposed to know whether the other was exercising proper care in the discharge of his duties. The maid of the toilet-room would not be supposed to be able to counsel and advise the operator of an elevator as to the safest mode of managing the machine, or to exercise any influence over him promotive of care, unless she had such knowledge of the proper manner of operating an elevator as to determine when it was properly run and when it was not. Where two servants are brought together in direct co-operation in the performance of a particular work, they have an opportunity, and, being engaged in the same line of work, they have the power and ability, to exercise an influence over each other promotive of proper caution, and where they are engaged in different lines of employment and their usual duties bring them into habitual association, the association must be sufficiently personal to furnish the same opportunity and power to exercise an influence upon each other promotive of proper caution: Bennett v. Chicago City Ry. Co., 243 Ill. 420 ( 90 N. E. 735 ). We do not think that defendant in error and the operator of the elevator were, as a matter of law, fellow-servants.”

As to the other matter urged upon rehearing, the judgment should be reversed for the reasons stated in the original opinion.

The cause will be remanded, with directions to the court below to grant a new trial.

Reversed : Remanded for New Trial.