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below was in favor of the company, notwithstanding a verdict by the jury rendered for the plaintiff. On this appeal this judgment was reversed, and the case was remanded with an order that judgment should be entered for the plaintiff on the verdict. The points of law involved are summarized in the following paragraph of the syllabus prepared by the court.

A contract obligation rested upon the defendant to safely transport the deceased to the place where it required him to work. Whether he was strictly a passenger while being so transported is immaterial, for by virtue of its contract it was the absolute duty of the defendant to exercise due care to secure his safe transportation. The negligence of the engineer and the conductor was its negligence.


EMPLOYERS' LIABILITY-RAILWAY RELIEF FUND—MALPRACTICECHARITIES- Teras Central Railroad Co. v. Zumwalt, Supreme Court of Texas, 132 Southwestern Reporter, page 113.–J. L. Zumwalt was an employee of the company named, and suffered the loss of an eye as the result, it was alleged, of the negligence of Dr. Samuel Webb, who was the company's chief surgeon and maintained a hospital under contract with the company for the treatment of its employees. The company deducted 50 cents per month from the wages of its employees, this sum being turned over monthly to Dr. Webb as compensation for his services, which included the maintenance of a hospital, treatment, board and lodging, and the supply of instruments, appliances, and medicine for employees entitled to hospital privileges. The point at issue was whether or not the railroad company was liable for the alleged negligence of Dr. Webb in treating Zumwalt. At the first trial a verdict was directed for the company on the ground that it was not liable for Dr. Webb's negligence, if any. The court of civil appeals reversed this judgment and granted a new trial, but permitted the case to be submitted to the supreme court on a writ of error. At this hearing the ground taken by the court of civil appeals was held not tenable, and its judgment was reversed, and that of the lower court affirmed. The grounds for this ruling appear in the following quotation from the opinion of the supreme court, which was delivered by Judge Brown:

It was the custom of the railroad company each month to deduct 50 cents from the wages due to each employee which constituted a fund to be applied to the procurement of medical attention and care for

any of such employees who might be injured or become sick during his employment with the company. When Zumwalt was employed by the railroad company, he understood this custom of the company, and expected it to reserve 50 cents out of his monthly wages for the purpose of providing medical treatment in case he should become sick or receive an injury. The company did reserve from Zumwalt's wages for each and every month up to the time of his injury 50 cents, which

* *

went into the hospital fund. Under the contract,

* the railroad company monthly turned over to Dr. Webb the full amount received by it from its employees by means of the deduction before stated. There is no evidence to show whether this was sufficient to pay the expenses of the hospital which Dr. Webb established at Walnut Springs or not. It does appear from the contract that Dr. Webb undertook to furnish, for the sum collected, medical attention and proper care to all persons entitled to participate in the fund. The railroad company claims that it was administering a charity in the performance of which it received from its employees the fund provided by the tax levied and paid it over to Dr. Webb, who was in charge of the hospital. Therefore, it is not liable for the injury resulting from his negligence.

If the fund distributed was such that its use constituted a charity, and the railroad company had no purpose to be served in connection with its own business by administering the fund, then it was only required in administering the trust to use ordinary care in the selection of Dr. Webb as the means by which to carry out the scheme inaugurated. (Union Pac. R. R. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581; Fire Ins. Patrol v. Boyd, 120 Pa. 643, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745.) If, however, the railroad company originated the scheme with a view to promote its own business and undertook the duty of dispensing the fund to accomplish a purpose of its own, it would be liable for the negligence of Dr. Webb, because, under these circumstances, the hospital would be the business of the railroad company, and Dr. Webb would be its agent. The effect of the evidence is that the railroad company inaugurated the plan to accumulate a fund with which to care for such of its employees as might be injured or be sick during such employment, and that fact suggests that it may have had a purpose of its own, but there is nothing in the evidence to indicate what that purpose was, and liability can not be based upon vague speculation. The fund did not become the property of the company, but it was held by it in trust for the contributing employees. There being no method of executing the trust specified, the company was charged with the duty of administering it in such a manner as would best accomplish the end for which it was accumulated; that is, to provide for the care of the sick and injured employees who should come within the terms of the trust. From the standpoint of the contributing employees, the fund constituted a charity because it was raised by them to be expended for the benefit of persons entitled thereto, who would receive it without cost to them. It may then with propriety be said that the railroad company was charged with dispensing a charity fund, and if it made the contract with Dr. Webb as a means of executing the trust reposed in it—that is, to give relief to the sick and injured employees coming within the class entitled to receive it without cost to them-it was engaged in dispensing a charity, and, under such circumstances, Dr. Webb would not be the agent of the company, nor would he bé performing or transacting a business of the company. Therefore it would not be liable for his negligence in the discharge of his duty as surgeon.

Although the fund was accumulated in the treasury of the company for charitable purposes and the company was charged with the duty of dispensing it for such purpose, yet, if in fact the contract with Dr. Webb was made by the company in order to promote its own interest by the administration of the trust fund and it had that effect, he was the agent of the company, and it should be held liable for his negligence. Upon the face of the contract, it appears to provide the most

practical method by which the trust fund could be applied to the purposes for which it was accumulated. The contract was made with a physician who was required to do those things which the sick and injured would need to have done for them, and the entire fund received by the railroad company was devoted to execution of the contract and the accomplishing of the purpose to which it was intended to be devoted. The contract did not require Dr. Webb to do anything for the railroad company in connection with the discharge of his duties, nor, indeed, does it appear from the terms of that instrument or the attending circumstances that by the performance of it the business of the railroad company was in any manner affected, or that Dr. Webb, in the discharge of his duties, was in any manner serving the railroad. In order to hold the railroad company liable under such circumstances, it must be shown in some way, or it must appear from the facts and circumstances, that in truth and in fact the railroad company used the trust fund by means of the contract to its own advantage. We find nothing in the facts found by the court of civil appeals which would indicate that any business of the company could be promoted, hindered, or delayed either by having the hospital or by its nonexistence. It is true that the company reserved the right to terminate the contract, but that was eminently proper, so that, in case Dr. Webb failed to carry out the good purpose of the parties, another arrangement could be made. All that has been done by the company is consistent with a desire to faithfully carry out the purpose of its employees in creating the fund. We can not attribute to the company motives not indicated by its acts, nor proved by the evidence.

The honorable court of civil appeals erred in reversing the judgment of the district court. It is ordered that the judgment of the court of civil appeals be reversed, and that the judgment of the district court be affirmed.

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EMPLOYERS' LIABILITY-RELATION OF EMPLOYER AND EMPLOYEE-INDEPENDENT CONTRACTORS—ASSUMPTION OF RISK—CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY-FEAR OF DISCHARGE-SAFE PLACE TO WORK-Jewell v. Arkansas City Bolt & Nut al., Supreme Court of Missouri, 132 Southwestern Reporter, page 703.-On December 9, 1902, Jesse Jewell was employed by the company named as a catcher in a rolling mill and suffered injury by the alleged negligence of the company and of one Sturges, and action was brought against the company and Sturges for a recovery of damages for the injury. It was Jewell's duty to stand near certain rolls used for the reduction of the size of bars of heated iron and catch them with tongs and return them through other rolls for a continuation of the process. After a certain stage had been reached the rods were bent in a half circle within which the workman stood, so that while one end of the rod would be moving outward toward the workman the other would be passing back through the rolls in the opposite direction. It was in evidence that it was a custom in rolling mills where this method was practiced to pass the rod around a fixed iron post so that in case of accident the employee standing within the semicircle would not be caught by the hot rod. In the mill in questión, however, instead of a fixed post, a heavy iron spindle was set, not fixed, and supported only by its own weight so that if sufficient force were applied it could be thrown over. Jewell complained of this arrangement as unsafe, but was told that other men worked in that position and if he did not care to do so be knew what he could do. There was also a provision of a pair of shears hung near the rolls for use in trimming splintered or ragged portions of the rod which might be unsafe and cause injury if allowed to pass through the rolls. The shears were in a defective condition and were needed for use near the end of the shift on which Jewell was working. He called the attention of his boss to the defective condition, but was told that it was near quitting time and that they would go ahead. The defective rod was passed through the rolls untrimmed, and caught and pulled the spindle over against Jewell, causing an injury to his leg which ultimately necessitated amputation.

In the circuit court of Jackson County, at the close of the plaintiff's evidence, the defendants asked for a peremptory instruction directing the jury to find in their behalf. This instruction the court granted, and a verdict was rendered accordingly. Jewell then filed a motion for a new trial, which was granted, and from the order granting a new trial the defendants appealed to the supreme court of the State. The supreme court affirmed the order granting a new trial on grounds that appear in the opinion of the court, which was delivered by Judge Woodson and is in part as follows:

The first insistence made by counsel for appellant company is that the relation of master and servant did not exist between it and the respondent; and for that reason it is not liable to him in any sum for the injuries of which he complains. That insistence is predicated upon the contention that the record shows that appellant Sturges was an independent contractor, employed by the company to manufacture the iron bars mentioned in the evidence, and to deliver them to it in a finished condition, without any authority or control on its part over said Sturges. If that is true, then the respondent was not an employee of the company, but was an employee of Sturges. In that case the doctrine of respondeat superior would not apply, and the company would not be liable in this case for any fault or neglect on the part of Sturges. (Hilsdorf v. St. Louis, 45 Mo. 94, 100 Am. Dec. 352; Barry v. St. Louis, 17 Mo. 121.) While that contention of counsel correctly states an abstract legal proposition, yet the trouble we are confronted with in applying that rule to the case at bar is the fact that the evidence also tends to show that Sturges was an employee and a vice principal of the appellant company. That being true, the evidence presented a question of fact for the jury to determine, and it could not be reached by a peremptory instruction. This is elementary, and a citation of authorities in support thereof would be a supererogation of labor. We therefore hold that the trial court erred in giving the peremptory instruction.

It is next insisted by counsel for both appellants that respondent is not entitled to recover from either of them, regardless of the relation that existed between them, for the reason that respondent's injuries were due to the dangers incident to his employment, which he assumed by accepting employment from them. It is elementary that a servant by entering the service of the master assumes all dangers incident to that service, and, when injured in consequence thereof, he can not recover damages from the master on account of such injuries. While this rule is plain and easily understood, yet its application to particular cases has been a great source of trouble and annoyance to both the bench and bar of this State and elsewhere. Much of this confusion could be obviated if the terms of the rule itself should be constantly borne in mind; that is, that the servant by entering the employment of the master assumes all risks which are incident to that employment, but he assumes none other. The carelessness and negligence on the master are in no sense incident to the servant's employment. The servant can neither by express [n]or by implied contract release the master from liability for injuries sustained in consequence of the master's negligence. [Cases cited.] So, in discussing this rule and its application to a concrete case, great care should be exercised in ascertaining whether or not the injury complained of was due to dangers incident to the servant's employment, or was it the result of the master's negligence. If due to the former, then a recovery should be denied; but, if caused by the latter, then a recovery should be allowed. In the case at bar what was the proximate cause of the injury? Clearly it was the failure of the company to maintain the iron post described in the petition. If it had been there, it would have been a physical impossibility for respondent to have sustained the injuries of which he complains. That being true, then the question presents itself: Was the company negligent in failing to maintain the post at the place and in the manner stated in the petition? In order to properly determine this question, we must consult the evidence bearing upon that question. It is undisputed that the appellant company owned the entire plant in question, and had exclusive control over every department thereof, including the rolling mills. That is (whatever may have been the relation that existed between the appellant company and Sturges, whether that of contractor or vice principal), the company had possession of and control over the building in which the mill was located as well as the mill itself, including the engines, boilers, and machinery connected therewith. The company also operated the entire plant, including the mill, and made all necessary repairs throughout all of the departments of the plant. Under this view of the case, the company's undertaking to and furnishing the place where and the instrumentalities with which the work was to be performed, the law imposed upon it the duty to exercise ordinary care in seeing that the place where Sturges and his assistants were to work, and that the instrumentalities with which they were to labor were reasonably safe for that purpose, even though it be conceded that Sturges was an independent contractor.

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