(186 N.W.)

ache. His left leg is still stiff, and his back [ "1. To operate a passenger train with its bothers him continually. For some six own engine and crew over said spur track months after the injury he was unable to work at all, and, owing to his physical condition since, has not been, and it is not like ly that he will ever be, able to return to his former occupation.

[1] The plaintiff claims that he is entitled to a verdict against the defendant coal company and the Director General jointly for the damages which he has sustained. The defendants both deny liability. Each defend ant, however, claims further that, in the event there is any liability, the other defendant alone is liable. In other words, the de

fendant Director General claims that the engine on which the plaintiff was working was at the time of the collision leased to the coal company; that the plaintiff at the time of the accident was an employee of the coal company, and not an employee of the Director General. The coal company, on the other hand, claims that at the time of the injury the plaintiff was an employee of the Director General; that the coal company had a perfect right to place the box cars where they were placed; that it was not negligent in doing so; and that it is in no manner liable to the plaintiff.

The evidence shows that on November 1, 1918, a written contract was entered into between the coal company on the one part and the Director General and railway company on the other part. The first paragraph of the contract sets forth the inducement:

shown in brown on said blueprint and over the main line shown in red on said blueprint to and from work, and also to use so much for the purpose of transferring its employees of said portion of the main track, together with sidings and wye colored red as may be necessary to properly perform such service.

*

"3. To transfer all freight cars as its business may require between said mine and the sidings of said spur nearest the main track. The railroad will set in empty cars for loading at said mine upon said sidings and take therefrom all loads delivered thercon by the coal company without charge. "4. The movements of trains, cars or light engines over said tracks shall be under rules and regulations prescribed by the division superintendent of the railroad and all cars handled by the coal company shall be under the master car builders' rules.

"5. The railroad hereby icases to the coal company one standard locomotive engine equipped with a small pilot snow plow and four open. platform passenger coaches all in good order for the rental of fifty dollars ($50.00) per day, such rentals to be computed from the time such engine and cars are delivered to the coal company.

"6. Subject to the provisions of article 3 hereof the railroad will maintain that portion of the main track, sidings, wye and mine spur which are to be used jointly by the coal company and the railroad and are shown in red on said blueprint. But the coal company shall pay to the railroad each month during the term

of this contract, toward the cost of maintaining the tracks last mentioned colored red and structures connected therewith used jointly by the parties, the sum of twenty-five and 93 hundredths dollars ($25.93). The coal company shall maintain at its own expense the spur track and all sidings connected therewith colored brown and green and extending approximately from a point three hundred feet east of the east headblock of the wye, station 14x35 to the end thereof.

"Whereas the coal company owns and is operating a lignite mine known as mine 'No. 2,' served by a spur track extending easterly from the main track of the railroad at Wilton, North Dakota, a distance of about three miles, with numerous sidings, which spur has a wye connection with the main track, and desires to operate said spur and perform all freight service for said mine with its own motive power and employees and to transfer in passenger coaches its workmen engaged in the operation "II. 1. The railroad agrees to furnish to of said mine to and from Wilton, and take coal the coal company and the latter agrees to and water for its engine from the railroad's use, an engine and a train crew, all the memsupply at said station, which will necessitate bers of which shall have passed an examinathe use of the main track from a point about tion on both mechanical and train rules, for five hundred feet south of said spur connec- the operation of the locomotive and trains to tion to a point about five hundred feet north be operated by the coal company pursuant of the station grounds at Wilton, together to this contract. It is expressly understood, with said wye and station sidings. The por- however,.that such engine and train crews shall tion of the main track, wye and station sid- be considered employees of the coal company ings owned by the railroad which the coai and treated as employees of the coal company company so desires to use are shown in red for all purposes in the construction and apon the blueprint hereto attached, marked 'Ex- plication of article three of this contract, and hibit A,' and made part hereof. The portion the coal company shall pay all wages of such of the spur track and sidings owned by the engine and train crew." railroad which the coal company so desires to use are shown in brown on said blueprint. The portion of the spur track and sidings immediately connected with the mine and owned by the coal company are shown in green on said blueprint."

The contract provides, among other things: "I. The railroad grants to the coal company for the term of this agreement the following rights and privileges:

Article 3, to which reference is made in the last-quoted paragraph, refers to and prescribes the respective obligations and liabilities of the coal company and the railway company with respect to the operation of trains, the maintenance of the roadway and structures, and injuries resulting from the operation of trains. The contract also makes provision for the payment of a stated com

pensation for the use of the spur track, main track, sidings, wye, and structures belonging to the railway company, and for the payment of bills covering rentals and maintenance. The Director General contends that, by virtue of the provisions of the contract, the plaintiff became, and at the time of the accident was, an employee of the coal company, and that, as a matter of law, the coal company alone is liable in damages for any injuries he may have sustained. After a careful consideration of this question we have reached the conclusion that the contention cannot be sustained. In other words, we are of the opinion that there is substantial evidence to sustain the findings of the jury that the plaintiff, at the time of the injury, was an employee of the Director General.

It will be noted that the contract was

"To establish the fact that the servant of one has thus transferred his services to another pro hac vice, it must appear that he has assented, expressly or impliedly, to such transfer. of his servant to another master without the servant's consent. It must further appear that the servant has, in fact, entered upon the service and submitted himself to the direction and control of the new master. His assent may be established by direct proof that he agreed to accept the new master and to submit himself to his control, or by indirect proof of circumstances justifying the inference of such assent. Such evidence may be strong enough to justify a court in removing the question from the jury, or it may require to be submitted to the jury." 59 N. J. Law, 38, 34 Alt. 987.

No one could transfer the services

In the case at bar the court submitted to

made November 1, 1918. The evidence shows the jury the question whether the plaintiff that prior to that date, namely, during the Asch at the time of the accident was worklatter part of October, 1918, the plaintiff, at ing as a locomotive fireman in the course of the direction of the proper employees of the his original employment. In other words, Director General, went to Wilton and worked the court submitted to the jury for deteras a fireman on a locomotive doing work for mination as a matter of fact whether the the coal company similar to that which was plaintiff had been transferred from his origdone by the locomotive which plaintiff was inal employment, and had become an emfiring on December 25, 1918. There is no di- ployee of the coal company. And the jury rect evidence that the plaintiff was informed found that he had not been so transferred, of the contract between the coal company but was at the time of the injury working and the Director General and the railway under his employment by the railway admincompany. On the other hand, the plaintiff istration. As already indicated, there is no testified (and the jury found) that he had no evidence that the plaintiff expressly assentknowledge of any such contract; that while ed to his being transferred to and becoming he worked at Wilton he supposed he was an employee of the coal company; nor do working for the railway administration, and we believe that the circumstances in the case that he had no idea that he was supposed to are such as to establish, as a matter of law, be an employee of the coal company. When that he impliedly gave his assent to such the plaintiff entered into the employment of the railway administration certain obliga- arrangement. It is true the evidence shows that plaintiff received some pay checks istions were assumed by both the employer sued by the coal company. However, this and the employee. It would seem that an circumstance alone was not sufficient to put employer ought not to be permitted to trans- him on notice that he had been transferred to fer the employee to another master, and ex- and had become an employee of the coal compose him to new risks incident to such new pany. See Standard Oil Co. v. Anderson, 212 employment, unless the employee either ex- U. S. 215, 225, 29 Sup. Ct. 252, 53 L. Ed. 481, pressly or impliedly consents to enter the 485. The plaintiff was engaged in his usual new employment, and assumes the risks and line of work. He was firing a locomotive obligations incident thereto. And that is the under the control of and operated by the rule established by the authorities. See Bowie v. Coffin Valve Co., 200 Mass. 571, 86 N. E. 914; Del., L. & W. R. Co. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986; 1 Labatt's ¦ Master & Servant (2d Ed.) § 53, p. 174; note, 37 L. R. A. 47. In Bowie v. Coffin Valve Co., supra, the Supreme Court of Massachusetts said that

Director General. He was under the direc

tion of, and his time was taken each day by, a locomotive engineer in the general employment of the Director General. The locomotive which the plaintiff was firing took all of its water at the water tank of the railway company at Wilton, and all the coal used in operating it was taken from the coal dock A servant "could not be transferred from of the railway company at the same place. one master to another without his consent ei-As breakages occurred the engines were takther expressly given or implied from the nature and character of the work when com

pared with his ordinary employment." 86 N. E. 915, 200 Mass. 578.

The same principle was enunciated by the Supreme Court of New Jersey in Del., L. & W. R. Co. v. Hardy, supra, in the following

en to the repair shop of the railway company at Bismarck. In going to Wilton he (plaintiff) went at the direction of the employees of the Director General, and in coming away from there he went in accordance with similar orders. The coal company had no right to discharge him; his status so far

(186 N. W.)

Railroad Administration was in no manner certain cars, loaded with coal, to be placed affected by the work he did at Wilton. In on the track on which the train would come view of all the facts and circumstances, we from Wilton to the coal mine that morning do not believe it can be said as a matter of There is no evidence tending to show that law that the plaintiff assented to a transfer the track in question was ever before used to, and became an employee of, the coal com- for the purpose of placing either loaded or pany. We express no opinion as to the re- empty cars thereon. On the contrary the spective rights and obligations of the Direc- evidence shows that the track was not so tor General and the coal company as those used, but was used merely for the movement rights are fixed by the terms of the contract. of trains to and from the mine. And the That is a matter for them, and one which assistant weighmaster frankly admits that does not concern or affect the rights of the the reason the cars were placed where they plaintiff in this action. were was that the brake slipped and the cars went over the switch, and out on the main line. The assistant weighmaster testified that the work done by him in connection with these cars was in his regular line of duty; and it clearly appears from his testimony that the place where the cars were placed was not the usual place to put such cars, and that but for the brake slipping they would not have been placed where they were. de further testified that he notified no one of the fact that the cars had gone out onto the main track, and took no precautions whatever to prevent the accident which subsequently happened, although he knew that the train would arrive in the course of half an hour or an hour after the cars had gone onto the main track. In our opinion, the evidence amply justified the conclusion of the jury that the coal company and its employees were negligent in placing the cars where they were, and also that this negligent act contributed directly to the injury sustained by the plaintiff.

By their answers to the interrogatories in the special verdict, the jury found that the engineer was guilty of negligence in operating the engine at the speed at which it was being operated at and immediately preceding the time the accident occurred, and that this want of care on the engineer's part contributed to plaintff's injuries. The jury also found that the plaintiff was not guilty of contributory negligence. In view of the facts and circumstances which the evidence tended to establish, and which have heretofore been alluded to, we are of the opinion that these findings of the jury have substantial support in the evidence. In other words, we are of the opinion that, under the evidence in the case, these were properly questions of fact for the jury.

[2] The defendant coal company contends that the complaint fails to state facts sufficient to constitute a cause of action against it. It does not appear, however, that the question was raised in the court below either by demurrer or otherwise. This contention is based, primarily, upon the proposition that the complaint does not allege that the relation of master and servant existed between the plaintiff and the coal company at the time of the injury, but that, on the contrary, the complaint shows that that relation existed between the plaintiff and the Director General. This contention, in our opinion, is not well founded. While the coal company did not owe the plaintiff the duty which a master owes to a servant, it did owe him the duty to use reasonable care in conducting its operations, so far as they might, with reasonable probability affect others, even though they were not the servants of the coal company. Olson v. Phoenix Mfg. Co. et al., 103 Wis. 337, 79 N. W. 409.

It is next contended that, under the facts in this case, the plaintiff cannot maintain a joint action against the coal company and the Director General, and that the joint verdict against them must be set aside. The claim of the defendants, and especially that of the coal company, as we understand from the argument, is that the defendants cannot be jointly sued for the injury occasioned by the collision unless it is shown that they omitted to perform, or negligently performed, some duty which they were jointly bound to perform, or unless it is shown that they jointly committed some tortious act which resulted in the injury. In our opinion, the contention is not sound, for it is not alone in cases where two or more persons are negligent in the performance of a duty which It is undisputed that the plaintiff, at the they jointly owe to another that they become time of the accident, was in a place where liable, and may be sued jointly for the inhe had a lawful right to be, and was engaged jury sustained. It is well settled that, where in the performance of work which it was his two or more causes join, and by contempoduty to perform. The coal company knew raneous action produce, a single injury, the that at a certain time in the morning of De- author of each cause is liable, even though cember 25, 1918, a train would come up from the authors acted independently of each othWilton to take the night crew away from the er. See Shearman & Redfield on the Law of mine. It knew that that train would come Negligence (6th Ed.) § 122; Thompson, Comover a certain track which was used for that mentaries on the Law of Negligence, § 2781; purpose. It is undisputed that the assistant 22 R. C. L. pp. 128, 129; 33 Cyc. 726; Matweighmaster of the coal company, whose du-thews v. Del., L. & W. R. Co., 56 N. J. Law, ty it was to weigh the loaded cars, permitted 34, 27 Atl. 919, 22 L. R. A. 261; Olson v.

Phoenix Mfg. Co., 103 Wis. 337, 79 N. W. 409. J See, also, Seckerson v. Sinclair, 24 N. D. 625, 636, 140 N. W. 239, 244; Edwards v. G. N. Ry. Co., 42 N. D. 154, 171 N. W. 873. The rule was well stated by the Supreme Court of New Jersey in the case of Matthews v. Del., L. & W. R. Co., supra. That action was one to recover damages for an injury received in a collision. The plaintiff in the action was a passenger on a street car, and he was injured in a collision between that car and a locomotive belonging to a railroad company. He brought an action against both the street car company and the railroad companies, or a railroad company and street railpany. The contention was advanced there, as here, that they could not be jointly sued, for the reason that there was no proof of joint negligence on the part of the defendants. In answering that contention the New Jersey court said:

road companies or a railroad company and another company or person, plaintiff may sue both jointly, and it is not necessary that there should be a breach of a joint duty or any concerted action on the part of defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of; nor is it material that one of defendants owed to plaintiff a higher degree of care than the other. So, in case of an injury growing out of a collision, where there was negligence on the part of both defendants, plaintiff may sue jointly, according to the nature of the collision, the two railroad comhackman in whose vehicle plaintiff was a pasroad company, or a railroad company and a senger. A person injured at a crossing may maintain a joint action against the company owning the road and another using it by its permission, where there was negligence on the part of the gateman of the one and those in charge of the train of the other, or the company owning the road was negligent in not maintaining a flagman at the crossing and the other company in the manner of operating its trains."

"If this contention is sound, it is obvious that the declaration was demurrable, for it charged that the railroad company owed to plaintiff a duty to give notice of the passage of its trains across the tracks of the railway company, and that the railway company owed to him a duty to take precautions in carrying The principle stated is applicable here. him across the tracks of the railroad company, Under the facts as found by the jury in this and it averred that each company had neglect- case, the injury sustained by the plaintiff ed to perform the several duties thus charged, resulted from a collision caused by the negand that thereby the collision which injured ligent act of the engineer in the operation of plaintiff occurred. But the contention is wholly the train, and by the negligent act of the asinadmissible, and the declaration would plainly sistant weighmaster of the coal company in have been good on demurrer. The error aris- placing the loaded cars on the tracks over es out of a misconception as to the nature of a which he knew the train would come. joint tort. If two or more persons owe to another the same duty, and by their common ther act, standing alone, but both acts in and operating concurrently, neglect of that duty he is injured, doubtless conjunction, the tort is joint, and upon well-settled princi- caused the injury which the plaintiff susples each, any, or all of the tort-feasors may tained.

was

follows:

Nei

be held. But when each of two or more [3] Error is also predicated upon the persons owe to another a separate duty, which court's action in allowing the plaintiff to each wrongfully neglects to perform, then, al- amend the complaint after the trial had comthough the duties were diverse and disconnect-menced. The amendments allowed were as ed, and the negligence of each was without concert, if such several neglects concurred and The plaintiff was permitted to add to his united together in causing injury, the tort is equally joint, and the tort-feasors are subject allegation as to the injury sustained the folto a like liability. This doctrine an-lowing: "And by grievous bodily injuries to nounced in this court by the chief justice in his face and other portions of his body"Newman v. Fowler, 37 N. J. Law, 89. The and to substitute John Barton Payne in like doctrine was applied by the court of ap- place of Walker D. Hines, as Director Genpeals in New York to a case identical with that eral. So far as the latter amendment is conunder consideration. Colegrove v. New York cerned, the court would take judicial notice & N. H. R. Co., 20 N. Y. 492. That case had of the fact that Walker D. Hines had ceased been mentioned with approval in Barrett v. Third Ave. R. Co., 45 N. Y. 628; Slater v. Mer- to be Director General and that John Barsereau, 64 N. Y. 138; Artic F. Ins. Co. v. ton Payne had been appointed as his succesAustin, 69 N. Y. 470 [25 Am. Rep. 221]. See, sor. C. L. 1913, § 7938, subds. 28, 30, 33. also, Cooper v. Eastern Transp. Co., 75 N. Y. Manifestly there could be no prejudice in 116. The same view is taken in other courts. permitting this amendment to be made. Nor Wabash, St. L. & P. R. Co. v. Shacklet, 105 do we believe there was any error in perIll. 364 [44 Am. Rep. 791]; Union Transit Co. mitting the complaint to be amended as to v. Shacklet, 119 Ill. 232, 10 N. E. 896; Car- the extent of the injury received. It is eleterville v. Cook, 129 Ill. 152, 22 N. E. 14 mentary that the allowance of amendments [4 L. R. A. 721]; Cuddy v. Horn, 46 Mich. 596, rests largely in the sound, judicial discretion

10 N. W. 32 [41 Am. Rep. 178]."

Cyc. (33 Cyc. 726, 727) says:

"Where an injury is sustained by reason of the joint or concurrent negligence of two rail

of the trial court, and that its rulings will not be disturbed unless an abuse of discretion appears. No application for a continuance was made, and there is not the slightest indication that the defendants were tak

(186 N.W.)

en by surprise, or in any manner prejudiced by the allowance of the amendments.

"I would like to have the record show that we are calling him for certain specific questions and as a witness for the other side."

Defendants' counsel objected to this statement. The court thereupon said to plaintiff's

counsel:

"You claim this man is called for crossexamination?"

To which plaintiff's counsel replied in part:

At the commencement of the trial the plaintiff called one Enright, the superintendent of the coal company, for cross-examination under section 7870, which provides that a party to a civil action, or the directors, officers, superintendent, or managing agents of any corporation, which is a party to the record in the action, may be examined upon the trial as if under cross-examination at the instance of the adverse party. Enright testified that he (at the time of the trial) was the superintendent of the defendant coal company. The defendants, however, contend that the plaintiff was not entitled to call him for cross-examination under the statute for the reason that his testimony showed that he was not superintendent at the time the accident in question occurred, In answer to preliminary questions the and that he, at that time, was merely a trav-witness stated that he had been subpoenaed eling salesman for the coal company. We by the defendants, and had discussed the find it wholly unnecessary to determine the case slightly with defendants' counsel. question raised, for it developed upon the fail to see wherein defendants could have been prejudiced by this procedure. examination of Enright that he knew nothcoal company, was called as a witness for

ing about the accident; he was therefore dismissed, and he gave no testimony which could in any manner affect the result of the action. The error, if any, was clearly nonprejudicial.

Error is also predicated upon the admission of the testimony of the plaintiff, Asch, as to what the engineer Johnson said to him upon discovering the box cars, viz.: "Let's get out of here!" It will be noted from the statement of facts that this statement was made immediately preceding the collision, and at a time when the locomotive was 300 feet or less from the box cars. In our opinion, the evidence was admissible. The statement made by the engineer, according to the testimony of the plaintiff, was a spontaneous utterance, made contemporaneously with the accident. The authorities generally hold such statements admissible as a part of the res gesta. See Champlin v. Pawcatuck Valley St. Ry. Co., 33 R. I. 572, 82 Atl. 481; 2 Jones (Horwitz), Commentaries on Evidence, § 344, p. 810 et seq., and authorities collated in notes.

Error is also predicated upon the testimony of the plaintiff as to the ownership of the railway line extending from Wilton to Bismarck. In our opinion the assignment is devoid of merit, for the defendants themselves, as a part of their case, put in full proof regarding the ownership of the tracks and engines, etc., and there was absolutely no conflict in the evidence as regards these matters.

Error is assigned upon the examination of the engineer in charge of the locomotive at the time of the injury. The engineer was called as a witness by the plaintiff. At the time he was called, plaintiff's counsel said:

"We know this witness is a witness that has been subpoenaed here by the defendants, and we call him to ask him certain specific questions on the theory that we are making him our witness only on such questions on the direct issues we put to him."

We

One Enright, the superintendent of the

the defendants. He was asked as to who paid the crews operating the trains on the spur between Wilton and the coal mine. An objection interposed by plaintiff's counsel was sustained, and that ruling is assigned as error. In our opinion the assignment is without merit for two reasons:

(1) On cross-examination conducted by plaintiff's counsel for the purpose of ascertaining the knowledge of the witness as to the matters concerning which he was about to testify, he (Enright) admitted that he did not himself pay the men; that they were not paid through his department; that the only knowledge he had on the subject was by virtue of information received from others, including members of the train crews. He admitted that the plaintiff in this case had never made any statement to him as to who paid him for the services he rendered at Wilton. It seems clear that the testimony not the best evidence, but was hearsay. sought to be elicited from the witness was

(2) Subsequently the defendants were permitted to adduce, and did adduce, other evidence relating to the payment of the crews operating the trains in connection with the mine, and that matter was fully covered by such other evidence. The plaintiff admitted that he had received and cashed certain pay checks, which were admitted in evidence. Such checks were issued by the coal company. Hence the defendants were in no event prejudiced by the exclusion of Enright's testimony. 37 Cyc. p. 1461 et seq.

During the course of the trial the engineer, Johnson, was again called as a witness for the plaintiff, and he testified that, during the time he and the plaintiff, Asch, were at Wilton, namely, between December 18th and