Broadwater v. Wabash R. Co.

• Decision Date: 17 March 1908
• Citation: 110 S.W. 1084,212 Mo. 437
• Parties: BROADWATER v. WABASH R. CO.
• Court: Missouri Supreme Court

110 S.W. 1084

212 Mo. 437

BROADWATER v. WABASH R. CO.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

Rehearing Denied May 19, 1908.

1. MASTER AND SERVANT—FELLOW SERVANTS —WHAT CONSTITUTES.

When plaintiff's husband, a railroad engineer, was killed as the result of the negligence of an engine hostler, if the hostler was charged with the duty of moving the engine and deceased was on the engine, engaged at the time in inspecting it as a part of his duties, they were fellow servants.

2. COURTS—STARE DECISIS—CONSTRUCTION OF STATUTE.

Where, in a former action involving the fellow-servant act (Laws 1897, p. 96; Rev. St. 1899, § 2873 [Ann. St. 1906, p. 1655]), the questions raised and passed upon were whether the act applied to a receiver of a railroad, and whether it was constitutional, which questions were decided in the affirmative, the decision was not a construction of the act as to whether the widow of a deceased employé could recover for her husband's death by the negligence of a fellow servant.

3. SAME.

The maxim of stare decisis applies only to decisions on points arising and decided in the cause, and the rule that a judicial construction of a statute becomes a part of it, and should be adhered to for the protection of rights thereafter accruing, should not be applied to constructions that can at most only be implied from something that was actually decided.

4. MASTER AND SERVANT—INJURIES TO SERVANT—RIGHT TO SUE.

Fellow Servant Act 1897, p. 96 (Rev. St. 1899, §§ 2873-2875 [Ann. St. 1906, pp. 1655-1657]), did not give plaintiff the right of action for the death of her husband, an engineer, while in defendant's employment, by the negligence of a fellow servant, since the cause of action created by the statute accrued only to the injured person, and not to his widow.

Appeal from Circuit Court, Randolph County; John A. Hockaday, Judge.

Action by Nora Broadwater against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Willard P. Cave, for appellant. J. L. Minnis and Geo. Robertson, for respondent.

GANTT, J.

This is an action by the plaintiff, as the widow of Sidney Broadwater, to recover damages in the sum of $5,000 on account of the death of Sidney Broadwater while in the employ of the defendant as locomotive engineer in defendant's terminal yards in Kansas City, Mo., on the 21st day of August, 1900. The petition was filed on the 9th of February, 1901, in the circuit court of Randolph county, and, in substance, alleges that on and prior to the 21st of August, 1900, Sidney Broadwater was her lawful husband, and defendant was at said time and is now a railroad corporation duly and legally incorporated and chartered under and by virtue of the laws of this state for the business of transporting passengers and freight upon its said railroad, and at the date last mentioned was engaged in running and operating its locomotives and cars from the city of St. Louis through the county of Randolph and into and through the county of Jackson; that on said 21st of August, 1900, and within six months before the bringing of this suit, said Sidney Broadwater was in the employment of the defendant as locomotive engineer, and on said day, by direction of defendant, ran one of defendant's engines attached to a train of freight cars from Moberly into Kansas City, Mo.; that upon the arrival of said locomotive and train in the yards of the defendant in Kansas City the said engine was detached from said train, and while said Sidney Broadwater the engineer, was still upon said engine, putting the same in order and condition, said engine was carelessly and negligently started forward by one J. T. Hale, an engine hostler, then and there in the employment of the defendant and charged with the duty of handling and operating defendant's locomotives in said railroad yards in Kansas City, Mo., and while handling and operating said locomotive said Hale negligently and carelessly ran said locomotive of defendant so that it collided with the train of freight cars then and there run and operated by the Kansas City, Ft. Scott & Memphis Railroad Company, in and along Santa Fé street, in said city, at a point where the railroad tracks of the defendant cross the tracks of said Kansas City, Ft. Scott & Memphis Railroad, and in said collision the said Sidney Broadwater was on said August 21, 1900, without fault on his part and while upon said locomotive and engaged in his work and in the discharge of his duties as the employé of the defendant, crushed and killed; that the death of said Sidney Broadwater was caused and occasioned by the carelessness, and negligence of the flagman of the defendant at said Santa Fé street crossing, who carelessly and negligently gave a signal to the person in charge of said locomotive of the defendant to run said locomotive across said Santa Fé street and across said railroad track of the Kansas City, Ft. Scott & Memphis Railroad, the said flagman having at the same time signaled said Kansas City, Ft. Scott & Memphis Railroad train to back up Santa Fé street across the railroad tracks of defendant, thereby causing the said train to collide with the locomotive of the defendant, and to turn said locomotive engine over and to kill said Sidney Broadwater; that said locomotive was so moved and operated by defendant's servant Hale by the direction and authority of the defendant; that said collision and the death of plaintiff's husband could have been avoided and prevented by defendant's servant Hale by the exercise of ordinary care and prudence in operating said locomotive; that said agent and servant of defendant could by the use of ordinary care have seen said Kansas City, Ft. Scott & Memphis Railroad train advancing and could have prevented said collision; that plaintiff's husband and said engine hostler, Hale, and said flagman at said crossing at the time said Sidney Broadwater was killed were all engaged in the common service of the defendant, and were while so engaged working together at the same time and place to a common purpose of the same grade, neither being intrusted by said defendant with any superintendence or control over their fellow employés or each other. Plaintiff alleges by the death of her said husband she has suffered pecuniary loss to her damage of $5,000, for which she prays judgment. Upon a petition for a removal to the United States Circuit Court for the Northern Division of the Eastern District of Missouri, said cause was removed to said United States court. Thereafter, on the 1st day of June, 1901, the Circuit...