Hoke v. St. Louis

• Decision Date: 21 March 1882
• Citation: 11 Mo.App. 574
• Parties: WALKER D. HOKE, Respondent, v. ST. LOUIS, KEOKUK, AND NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 574

WALKER D. HOKE, Respondent,

v.ST. LOUIS, KEOKUK, AND NORTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 21, 1882.

1. That one is a vice-principal for a certain purpose does not make him an alter ego of the master when acting in another capacity.

2. A “road-master” of a railroad company, having superintendence of the “road department,” is not a vice-principal in such a sense as to render the company liable for his negligence, when he assumes to act as a mere “boss” or “foreman of a gang.”

APPEAL from the St. Charles Circuit Court, EDWARDS, J.

Reversed and remanded.

GEORGE F. HATCH and T. F. McDEARMON, for the appellant: The act of the road-master in this case, was the act of a co-laborer or fellow-servant of the respondent, and not as vice-principal or alter ego of the appellant.-- Brickner v. Railroad Co., 2 Lans. 506; Harper v. Railroad Co., 47 Mo. 567; Brothers v. Carter, 52 Mo. 372; Marshall v. Schricker, 63 Mo. 308.

THEODORE BRUERE and NAT. C. DRYDEN, for the respondent: The “road-master,” through whose negligence the injury was caused, had superintendence of a department of the business of the appellant, with delegated authority to employ and discharge hands, and was not, therefore, a fellow-servant of the respondent, a common laborer, but was an alter ego, or vice-principal, of the appellant.-- Hamilton v. Railroad Co., 3 Mo. App. 601; Devany v. Iron Works, 4 Mo. App. 243; Gormly v. Iron Works, 61 Mo. 494; McGowan v. Railroad Co., 61 Mo. 528; Lyden v. Marion, 3 Mo. App. 601; Whalen v. Church, 62 Mo. 326.

BAKEWELL, J., delivered the opinion of the court.

This was an action for damages for an injury alleged to have been done to respondent by appellant and its employees whilst engaged in loading a wrecked car upon a train of cars. There was a verdict and judgment for plaintiff for $10,000.

The petition states in substance that on August 15, 1879, plaintiff was working in defendant's employ as a laborer, acting under Michael Fitzgerald, an agent and servant of defendant, who was superintending or “bossing” the body of laborers of whom plaintiff was one. Plaintiff was acting as a laborer under the direct supervision and control of John Tracey, one of the controlling officers, to wit: the roadmaster of defendant's road. Fitzgerald was present as an assistant of Tracey in superintending plaintiff and other laborers in loading a flat-car, whose wheels and trucks had been broken off, upon a wrecking train, both of which were owned by defendant, and being controlled by defendant's agents. The wrecking-train was composed of an engine and flat-cars, and had been cut in two, some of the cars attached to the engine being south of the wrecked flat, and other cars standing still, north of the wrecked car. The flatcar had been lifted upon the track of defendant's road, where the train was cut in two, and the north end of the wrecked flat-car had been lifted up and placed on the first car in the wrecking train north of the wrecked flat, and the other laborers and plaintiff, under the control and supervision of Tracey and Fitzgerald, were attempting to place the south end of the wrecked flat on the first car of the wrecking-train immediately south of the wrecked flat, so that the first car on the south might be pushed under the wrecked flat. This flat was held up above the level of the first flat south, by levers resting on the floor of the first flat south, he north ends of which levers extended a few inches under the south end of the wrecked flat; and, while the wrecked car was held up by the levers, plaintiff was ordered by Fitzgerald and Tracey to go under the flat and push out one of the levers. He obeyed the order, and whilst pushing at he lever, Tracey, intending to signal the engineer to move the engine north, by carelessness and mistake, signalled to move south, in consequence of which the engine was moved south, the first flat south was moved from under the levers, and the first flat fell on plaintiff, crippling him for life.

There were also allegations as to the insufficiency of the machinery, but these were not insisted upon, and all testimony as to them was taken from the jury by an instruction given at plaintiff's instance.

There was evidence to sustain the allegations of the petition. There is a conflict of testimony as to what signal Tracey gave; but all agree that if Tracey gave the signal which plaintiff's witnesses say he gave, he gave the wrong signal, caused the cars to move the wrong way, and thus occasioned the accident.

Besides one instruction as to the measure of damages. and the instruction mentioned above, the following were the instructions upon which the case was given to the jury. The first two were given at the instance of plaintiff, the next three at defendant's instance, and the last by the court, proprio motu:--

1. “If the jury find from the evidence that one John Tracey was the road-master of defendant's railroad, and as such road-master was the superintendent for the defendant of the work of removing and loading up the wreck in question, and had entire control and charge thereof, with power to employ the section foreman and section hands, and that the plaintiff was subject to his orders and directions, then the jury are instructed that said Tracey was not a fellow-servant with the plaintiff, and that said Tracey's acts and conduct, in connection with said work, were and are the acts and conduct of the defendant, so far as this case is concerned.”

2. “If the jury believe from the evidence that the plaintiff, while employed by defendant as a section hand, on or about the fifteenth day of August, 1879, in the discharge of his duty as such section hand, was ordered by his superior to step under the wrecked car and push out a certain lever, and that in the discharge of said duty, and in obedience to said order, plaintiff stepped under said car, and while engaged in attempting to carry out said order, the defendant, through negligence or mistake, and without warning to the plaintiff, gave to the person in charge of the engine, a signal to move said engine and the cars attached to it southward, when the proper signal would have been to move the engine and cars attached to it northward, and that in obedience to said signal the person in charge of the engine moved said engine and cars attached to it southward, and that in consequence thereof said wrecked car fell upon and injured the plaintiff, the verdict must be for the plaintiff.”

3. “If the jurors believe from the evidence that at the time plaintiff was injured he was an employee of the defendant, and engaged with a number of other men in loading a wrecked train on a flat-car attached to an engine on defendant's track, and that John Tracey, defendant's road-master, gave a signal to the engineer in charge of the engine to move his engine northwardly, and that the engineer, instead of moving his engine northwardly, moved southwardly, and that the...