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“This principle (being one stated before) may be applicable even where the risks are apparent, and fully open to observation, provided the servant, from his youth and inexperience, or other cause, is incapable of fully understanding and appreciating them.” And again: "Now, in this case, the servant was inexperienced,” etc., "and, although the extra risk was apparent from this cause, the risk was not upon his shoulders." The decision in this case should also be considered in reference to the facts that were presented. An inexperienced youth, unacquainted fully with the danger he incurred, was ordered to perform a duty by a master who fully understood the risks the servant was taking.
The case of Jones v. Railroad Co., 49 Mich. 579, 14 N. W. Rep. 551, appears to be based upon the case of Railroad Co. v. Bayfield, but the facts in the two cases are different. This case does seem to support the contention of the plaintiff in this case. Cooley, J., did not fully agree with the opinion of the court expressed therein, and said he did not think that the facts showed that the plaintiff was wrong. fully sent on the duty in the performance of which he was injured. In that case the plaintiff was hired as a passenger brakeman, and was required to do some switching and coupling of cars. This was a duty, under his contract of employment, he was not required to do. The case is not fully reasoned out, and, in my judgment, is not sustained by the decision cited as supporting it, or the authorities generally. There is one thing to be noticed concerning the same, and that is, there is nothing to show that the plaintiff in that case knew the business of coupling cars, or had any knowledge of the dangers incident to it. The case is reviewed in Leary v. Railroad Co., 139 Mass. 586, 2 N. E. Rep. 115. Judge Devens says that the plaintiff was injured on account of his inexperience, and that that decision was based upon that fact. It is evident that that distin. guished jurist in the last case mentioned does not fully sustain the views therein expressed, and I think the case in 139 Mass. and 2 N. E. Rep. may be considered as a direct authority opposed to that case.
The case of Cole v. Railway Co., 71 Wis. 114, 37 N. W. Rep. 84, is one certainly opposed to the general doctrine expressed in the case of Jones v. Railroad Co., supra. That case is almost on all fours with the case at bar. The plaintiff in that case was a foreman in charge of a gang of men engaged in bridge work. He was requested by a superior to do certain switching and yard work at Fond du Lac, Wis. He was injured by his glove catching, and his hand permanently injured. After a review of many cases, among them Jones v. Railroad Co., the court says:
"All we decided in this case is that, when an employe of mature years, and of ordinary intelligence and experience, is directed to do a temporary work outside of the business he is engaged to do, and consents to do said work without objection, on account of want of knowledge, skill, or experience in doing said work, negligence of the employer cannot be predicated upon that stite of facts."
This view is sustained by many authorities. Some of them will be found collected in a note No. 5, commencing on page 859, 14 Amer. & Eng. Enc. Law. In regard to the opinion referred to as having been
rendered by Judge Deady, (Gilmore v. Railway Co., 18 Fed. Rep. 866, on page 870,) I will say that if Judge Deady meant, (as I doubt,) to express the opinion that when an employe was ordered to do work outside of his employment, and was injured, the company was liable, from that very fact I do not think his view of the law is sustained by modern authorities.
In this case the plaintiff had been in the employ of different railroad companies for nearly 12 years. He was a man of mature years. He was acquainted with the dangers incident to the coupling of cars. He had at times, when necessity demanded, performed such work. When ordered to perform that work, which, under the evidence, was undoubtedly outside of his ordinary employment, he made no objections, but says that he performed the duty under the fear that, if he refused to do it, he would be discharged by his immediate superior, the road master. It does not appear that he made any objections to the performance of this duty, or that the road master made any threats to discharge him unless he performed it. The plaintiff, with other employes of the company, was engaged in clearing a wreck of a train of railroad cars from the track of the defendant. There were no brakemen present whose duty it was to perform the work performed by plaintiff. When ordered to bring up the derrick car, he im. mediately started to perform the duty. In order to bring up the derrick car it was necessary for him to act as coupler in connecting the tender to the same, and he was injured in so doing. He stated at the time that no one was in fault but himself. The question here presented is one that does not apply to the railroad company only. If a merchant who had suddenly been called upon to attend to some unexpected business, should order his bookkeeper or one of his clerks to drive a horse and buggy, in which was his wife, to his residence, and the horse should run away, and the employe should be injured, I hardly think that he should be entitled to damages if the master was without fault, merely because he was performing a service for which he was not employed. And I might enumerate many other incidents of the same kind.
Wood on Master & Servant, § 89, lays down the rule that there are services that an employe may be required to perform that are outside of his contract of employment, which will not break that contract. I have no doubt that many employes of a railroad company, in times of emergency, are called upon to perform many acts which are outside of their regular employment. The engineers and firemen work in clearing away wrecks, and in helping to put cars upon the track, and, where this work is done without objection, and a party so engaged is injured, without any actual negligence on the part of the company, I do not think the company should be liable. The motion to instruct the jury to find a verdict for the defendant is sustained.
NORTHERN PAC. R. CO. v. HINCHMAN et al.
(Circuit Court, D. Montana. November 14, 1892,) 1. PUBLIC LANDS-RAILROAD GRANTS-LANDS EXCEPTED—"PUBLIC LANDS” DE
'The lands in the Bitter Root valley above the Lo Lo Fork were not "public lands," such as could pass to the Northern Pacific Railroad by the grant expressed in the act of July 2, 1864, § 3, as of that date; for by the treaty of 1855 with the Flathead Indians it was provided that these lands should be surveyed and examined, and if, in the judgment of the president, they proved to be better adapted to the wants of the Flathead tribe than the general reservation therein provided, then such portions as were necessary should be set apart as a separate reservation for the tribe, and that they should not be open to settlement until the decision of the president was made known; and such decision was not made known until 1871,
when the president decided not to make the lands a reservation. 2. SAME-PRIOR APPROPRIATION.
By the act of June 5, 1872, (17 St. at Large, 226,) these lands were excluded from the operation of the general pre-emption and homestead laws. Certain rights of pre-emption, without cost, were given to Indians actual. ly occupying and cultivating any portion thereof. Special provisions were made as to the manner of selling the remainder to settlers, and a special account was directed to be kept of the proceeds, a portion of which was to be set aside and expended by the president for the benefit of the Indians. Held, that by this act these lands were reserved for a special purpose, so that they did not pass to the Northern Pacific Railroad Company on the subsequent filing of its plat of definite location, although they
were within the limits of the grant. 3. SAME.
This reservation by congress of the land in question was not in violation of any contract rights acquired by the railroad company under the grant. for the grant only attached, on the definite location of the road, to lands to which the United States had “full title, not reserved, sold, granted, or
otherwise appropriated," 4. SAME_WITHDRAWAL FROM SALE, ETC.
Section 6 of the granting act, which directs the president to cause the lands to be surveyed for 40 miles in width, on both sides of the entire line, "after the general route shall be fixed," and declares that the odd sections granted shall not be liable to "sale or entry or pre-emption before or after they are surveyed, except by said company, as provided by this act," did not operate to reserve or withdraw such lands from sale or other disposition by the government before the filing of the map of definite location with the commissioner of the general land office. Railroad Co. v.
Sanders, 46 Fed. Rep. 239, 47 Fed. Rep. 604, followed. 5. SAME.
Even if it be conceded that this reservation or withdrawal could operate at the time the "general route" was fixed, the reservation was only from "sale or entry or pre-emption," and these terms do not include such an
appropriation as was made by the act of 1872. 6. SAME.
The fact that in 1874 an act was passed extending the homestead law to all settlers on these lands who might desire to take advantage thereof did not take the lands from the special appropriation made by the act of 1872, and restore them to the same condition as the mass of the public domain, so as to make the grant attach thereto on the subsequent fixing of the definite route by the filing of the plat thereof with the commissioner of the general land'office. At Law. Action in ejectment, brought by the Northern Pacific Railroad Company against James R. Hiuchinan and others. Tried to the court on an agreed statement. Judgment for defendants.
F. M. Dudley and W. E. Cullen, for plaintiff.
KNOWLES, District Judge. This is an action in the nature of ejectment, brought by plaintiff to recover of defendant and others the possession of certaiu lands in the Bitter Root valley, Mont., described as section 11 N., range 20 W., in the county of Missoula, territory of Montana. Since the commencement of this suit, Montana has become a state in the Union. The case was subinitted to the court upon an agreed statement of facts. From this it sutticiently appears that plaintiff received a grant to the premises in dispute, unless it is by some operation of law excluded therefrom. is within 40 mules of the line of the railroad route of plaintiff as located, built, and accepted, and is an odd section. It also appears that defendant settled upon 160 acres of said section on the 3d day of October, 1884, claiming the same as a homestead; that he improved it, and on December 5, 1887, made his final proofs, and pre-empted the same, and on the 6th day of November, 1859, he received a patent to the same from the United States.
It is also agreed that the Flathead Indians made a treaty with the United States in 1855 in regard to their lands, which treaty was ratified by the senate, March 8, 1859; that the lands in the Bitter Root valley above the Lo Lo Fork, among which are situated the lands in dispute, had been carefully surveyed before 1871, and the president had decided that the same had proved not to be better adapted to the wants of the Flathead tribe than the general reservation provided for in said treaty, and had issued an order to that effect on November 14, 1871. In that order it was provided that any Indians residing in the Bitter Root valley who desired to become citizens and reside upon the land which they then occupied, not exceeding in quantity what is allowed under the lioviestead and preemption laws to all citizens, should be permitted to remain in said valley upon making known to the superintendent of Indian affairs for Montana territory, by the 1st day of January, 1873, their intention to comply with these conditions. In the above order referred to there was a provision that said Indians should be removed to tbe general reservation provided therefor.
It was also agreed that from the time of making said treaty the Indians continued to occupy and claim the lands in the Bitter Root valley, and were so occupying and claiming at the time of said or. der of the president, November 14, 1871, and that they continued in possession and claimed and were there in August, 1872, and one of their chiefs, Charlot, is yet there, with several hundred Indians under him,
It is also agreed that since June, 1872, in pursuance of the act of congress of the 5th of that month, there d been issued 54 patents for parts of said Bitter Root lands above Lo Lo Fork to various ones of said Indians, and 3,240 acres of the said lands covered by these patents are within odd sections, and within 40 miles of said road, and are yet in the possession of and claimed by said Indians. That said Indians, however, have refused to accept said patents for fear of
severing their tribal relations; that Charlot, the chief of said Indians, lives upon one section of said land, and has done so since 1955.
It is also agreed that there is no claim on the part of the Indians residing in the Bitter Root valley that the same or any part thereof is an Indian reservation, or that the Flathead tribe, to which they belong, has never parted with the Indian title thereto; nor is the tract in controversy claimed by any of said Indians; nor was it so claimed by any of them at the date of the filing of the map of the definite location of plaintiff's road, or at the date of the entry thereof by defendant; nor was the said tract of land embraced in any of the patents mentioned above as having been issued to, but not accepted by, said Indians.
The third section of the act incorporating plaintiff, and making a grant of land to it, provides-
"That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the coustruction of said railroad and telegraph line to the Pacitic coast, and to se(ure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad, wherever it passes through any state, and whenever, on the line thereof, the United States have full title not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land otlice."
The treaty above referred to with the Flatheads contained this section:
"It is moreover provided that the Bitter Root valley, above the Lo Lo Fork, shall be carefiilly surveyed and examined, and if it shall prove, in the judgment of the president, to be better adapted to the wants of the flathead tribe than the general reservation provided for in this treaty, then such portions of it as may be necessary shall be set apart as a separate reservation for said tribe. No portion of the Bitter Root valley above the Lo Lo Fork shall be opened to settlement until said examination is had, and the decision of the president made known."
As above stated, this survy was made, and in 1871 the president decided not to make said lands a "reservation for said Indians." From these facts it is evident that these lands never were enıbraced in what is termed an “Indian Reservation.” They were public lands, which, by the terms of the treaty with the Indians named, the president might devote to such a reservation. In the case of Phelps v. Northern Pac. R. Co., reported in 1 Dec. Dep. Int. 381, Secretary Teller, of the interior department, rendered a decision upon the very point at issue in this case, and held that these lands in the Bitter Root valley did not pass to plaintiff in its grant. He bases his decision upon the ground, in part, that the lands were at the time of the grant to said company reserved, and adopts this language from the case of Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733: "Every tract set apart for special uses is reserved to the government to enable it to enforce them." There are other declarations in this same opinion last named which appear to me to have a great bearing upon the