CANTER V. COLORADO UNITED MIN. CO.
other; theh separate services had an immediate common object-the moving of engines; neither worked under the orders or control of the other. Following that, in 112 U. S. 377, 5 Sup. Ct. Rep. 184, the famous. Ro88 Case, the supreme court, by five to four judges, held that a conductor having charge of a train was so far localized in his work, given such control over the train, that it was.fair to hold him as a viceprincipal, and not a co-employe with one on another train injured by his negligencej but they do not carry this exception to the old rule Leyond the conductorjand while, of course, no man can know what may be the decision of the court in subsequent cases, I am reliably informed that the decision was intentionally and narrowly limited to the case of a conductor. In Railroad 00. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep. 590, a case that went up from Dakota, the court held that one who had charge of the. keeping of the cars and machinery in order was not a coemploye with one who was at work as a brakeman, on the ground that it was an independent duty of the railroad company to see that its IlllV chinery, its cars, were kept in ordet; and that that was not a common service with that of one who is employed in running trains. In 119 U. S. there are two cases,-one, Steam-Ship 00. v. Garey, p. 245,7 Sup. Ct. Rep. 1360, and the othe.r Railway 00. v. McLaughlin, p. 566,7 Sup. Ct. Rep. 1366. Neither of those cases adds anything to the question, for +lley were each affirmed by a divided court, so no principle of law was settled. .In one of them the negligence charged was of some agent of the company in failing to provide a suitable rope. That was the duty of one who had charge of the machinery of the company as contradistinguished from one who worked in using such implementsj and yet, by I)nly a divided court, the judgment below was affirmed. Theothercase '¥ent up from Iowa, and that was affirmed by a divided court; although in Iowa, by statute, they have abolished the rule in respect toco-employes, just as they have in Kansas. So the rule, as at present left by the supreme court,-and that, of course, guides me,-is that an engineer is a co-employe. It is a common service in a common object,--:'the moving of trains,-and, following the decisions of that court, I must sustain the demurrer to that complaint.
COLORADO UNITED MIN.
(Ozreuit Oourt, D; Oolorado.
May 4. 1888.)
MASTER AND SERVANT-NEGLIGENCE OF MASTER-PLEADING.
The complaint in an action for damages for personal injuries set out the employment of plaintiff by defendant, and charged II. breach of duty on. the employer's part in faillnlt t.o keep a certain ladder in proper repair, andtlla& one of the rounds of said ladder broke and dropped plaintiff. The allegation of negligence was to the effect that "it was the duty of defendant to keep said ladder in good, safe, and secure condition, so that those in its employment milrht securely ascend and descend the shaft UDon the same." Held. on de-
murre'r, that the duty cif the employer was stated too broadly, and that the complaint. $ould be amended so as to 'confine that duty to the exercise of .. reasonable care and diligence. "1 .
At Law. Action for damages for personal injuries. complaint. T. M. Patterson, for plaintiff. R. S.MorriBon, for defendant.
On demurrer to
goOd.·safe,and s6curecondition. so that those in its employment might ascend aDd, descend the' shaft upon the same, secure from barm byreasQn of the .bJleakJngof .Qrinjury. to the same."
BREWER, J. In this case there is a demurrer to the complaint. The cause of action is one for personal injuries. There is really no difference between counsel on both sides and the court as to the rule oflaw applicable to cases of this kind. The complaint charges a breach of duty on the part of the defendant in failing to keep a ladder in good condition, one of the rounds of which broke, and dropped the plaintiff, causing the 'accident. It is not the absolute duty of an employer to see that the instruments and machinery he provides are safe. The limit of his duty 'is 'reasonable care and precaution in that respect. ! think that,taking the complaint as a whole, it may be .an open question whether any more than a breach of such duty is charged, and yet, in the clause stating the -duty separatelYl it is stated broader than the law imposes. Theparticular:clausereads thus: . "That it was the duty of saiO defendant company'to keep the said ladder in
, That, construed strictly, is an affirmance that it Was an absolute duty, tuld, a breach of.that duty necessarily would liability, and in cases 'bfthis kind,where the form of the complaint is challenged in the first in which we all know that the sympathies of the jury ';pQtur.ally go put to the injured person,"'-! do not know but what it is 'ofairnnd: right 'that the language of the complaint should be made tech-nically'accurate in describing the duty resting upon the defendant. So, f although .there isgeneraLlangtiage in the subsequent part ofihe complaint that the defendant negligently and carelessly did so and so, I think, as this is challenged in the first instance, it would be no more than fair to sustain the demurrer, and at the same time permit an amendment by interlineation in thisclatise; so that it shall read that it was the duty of said company to use reasonable care and diligence to keep the said ladder, etc.; .or puWng at .the close of the sentence, "So far as the same could be accomplished by the exercise of reasonable care and diligence," so that, when. the complaint.is read to the jury, and commented on, it may appear that the limit of its duty is the exercise of reasonable care and prudence., '.
'..: :l:A; ms.ster's' 118bilityfor injuries to his servant for defective arrangements is not that :·ot:ari ilisurer, or a guarantor. The question is one of reaSonable care and .dUigence. Battersbb. .... Rl!-ilway Co.k(Mich.) 18 N. W. Rep.508J18 N. W. Rep. 584; RICh!l>1'ds v. I 18 N. W. J:l.ep. 785; Railroad Co. v. wagner, (Kan.) 7 Pac. Rep. 204; i .Pierce T. Mills, (Ga.) 4.8. E. Rep. 881 ; ManUfacturing Co. v. McCormick; (Pa.) 12 At!. . Rep. ,278.; Bowenv. RaIlway Co., .(Mo.) 8 S. W. Rep. 230.
HOLLAND V. BROWN.
CoWAN 'V. UNION PAC.
(Oircuit Oourt, D. Colorado. May 12, 1888)
MASTER AND SERVANT-NEGLIGENCE OF MASTER-FAILURE TO FENCE RAILROAD
Neither common nor statute law in Colorado require that a railroad com· pany shall fence its track to prevent cattle from straying upon it. Hence. 'the company is not liable for the death of one of its engineers caused by a collision with cattle on the track.
At Law. Action for damages. On demurrer to complaint. Browne &; Putnam, for plaintiff. Teller &; Orahood, for defendant.
BREWER, J. In Cowan I,1gainst the Union Pacific Railway Company is a demurrer to the complaint. The cause of action is, briefly, that the plaintiff's intestate was an engineer on the defendant's road, and while running a train, stray cattle jumped on the track, whereby the engine was thrown therefrom and he killed. Neither common nor statute law in Colorado requires that a railroad company fence its track to prevent cattle straying upon it, and where there is no obligation there is no liability. CouDsel for plaintiff, in his brief, admits there is no authority sustaining this complaint, but insists that somebody must blaze the way, and we ought to. It is sufficient reply to that that it is the duty of .the law-making legislature-to blaze the way. The duty of the court is simply to walk super antiquas vias. Many a case I decide one way when I should decide differently if I had authority to make as well as construe the law. In the absence of any legislative .action establishing a new rule, the only true way and rule for the court is to say ita· lex scripta est. The demurrer to the complaint will be sUstained. This is one of those cases whose pleading, I think; in the nature of things, cannot be changed so as to make a cause of action.
(District Oourt, D. OregOfl,. May 22, 1888.)
1. DEATH BY WBONGFUL ACT-ACTION BY ADMINISTRATOR-DAMAGES.
The damages given to an administrator for the death of his intestate by the statute of Qregon,(COm p.1887,.. 8.,71) are. when recovered. assets of ,the estate. They do not includ.e anything but what is consequent on the death, and therefore DO allo"wance can be made for the expenses of the illness. attendant 011 the injury which caused the death, or of the burial of the deceased.
'·These damages are in the nature of a compensation paid by the wrong-doer ,:, to creditors and next of kin of the deceased for the loss of life in which they have a pecuniary interest. and incidentally the liability to pay them is calculated to secure from carriers and corMratioDs more consideration for·thelive. of passengers aJ;ld employes committed to their care. . , .' .