Murray v. St. Louis, Cable and Western Railway Co.

• Decision Date: 04 November 1889
• Citation: 12 S.W. 252,98 Mo. 573
• Parties: Murray, Appellant, v. The St. Louis Cable and Western Railway Company
• Court: Missouri Supreme Court

12 S.W. 252

98 Mo. 573

Murray, Appellant, v. The St. Louis Cable and Western Railway Company

Supreme Court of Missouri

November 4, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

A. R Taylor for appellant.

(1) The deceased was not a fellow-servant with the negligent gripman because his duties pertained only to guarding the track. A trackman has been repeatedly held by this court not to be a fellow-servant with men operating a train. Such has been the doctrine in this state continuously, since Lewis v. Railroad, 59 Mo. 495, followed by Hall v. Railroad, 74 Mo. 301. And the doctrine is emphatically reasserted in the recent case of Sullivan v. Railroad, 97 Mo. 119-120, which latter case, we submit, is precisely in point with the case at bar.

R. H. Kern for respondent.

The case of Sullivan v. Railroad, 97 Mo. 119, relied upon by appellant, is not decisive of this case. It was the duty of plaintiff's decedent to stand at the corner and assist directly and immediately in the operation of the cars as they were managed by the gripman and conductor around the curves, and he was as much engaged in the operation of the car that injured him as was the gripman and conductor. He was not a track watcher, as appellant would have us believe, but was there for the purpose of operating the cars around the curves. It was just as much his duty to assist in operating as it was the gripman's duty to assist in managing the grip whilst it pulled the car around. "All are fellow-servants who are engaged in the transaction of the same common work, leaving no dependence upon or relation to each other except as co-laborers without rank, under the direction and management of the master himself, or of some servant placed by the master over them." Moore v. Railroad, 85 Mo. 588.

Black J. Ray, C. J., absent.

OPINION

Black, J.

-- This is a personal damage suit, and the only question is, whether the court erred in sustaining a demurrer to the evidence at the close of the plaintiff's case.

The defendant owned and operated a cable street railroad in the city of St. Louis, and the plaintiff's husband, James Murray, was in the defendant's employ as a watchman at the corner of Fourteenth and Wash streets. The defendant's two tracks at that point make a short curve. It was the duty of Murray to guard the crossing and to prevent injuries to persons crossing the tracks, and to signal the approaching cars to stop and start, so that they would not pass each other upon the curve. Beyond this, he had nothing to do with the operation of the cars. The evidence tends to show that in the night time and while Murray was in the discharge of his duties at the curve, he signaled two of defendant's approaching cars, the one to stop and the other to move on around the curve. The car signaled to stop, through the negligence of the gripman in charge of it, failed to stop, and the gripman let it go forward until it ran over and killed Murray. Murray was exercising ordinary care.

The only question presented by this statement, is whether the negligent gripman and the deceased were fellow-servants within the rule that exempts the master from liability for injuries occasioned by one servant to a fellow-servant. The defendant cites and relies alone upon the case of Moore v. Railroad, 85 Mo. 588. In that case, the plaintiff was a car repairer and was injured by the negligence of his foreman. The principle which that case turned upon was this, that where the master has entrusted to a foreman power to superintend, direct and control work, the foreman in the exercise of such powers intrusted to him is a representative of the master, and for that reason not a fellow-servant. There is no evidence in this case that the gripman occupied the position of a vice-principal, and of course the plaintiff here cannot recover on any such ground.

The plaintiff cites and relies alone upon Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298 and Sullivan v. Railroad, 97 Mo. 113. In the Hall case the plaintiff, who was switchman, brought his suit to recover damages for injuries received by reason of a loose iron rail left upon the track by the negligence of a section foreman. It was there said: "The principal ground relied upon for a reversal of the judgment which the plaintiff recovered is, that a switchman and a section foreman are fellow-servants. Adjudications of the courts of other states of the union sustaining the appellant's position are cited by counsel, and, whatever our opinion might be, if it were a question of the first impression in this court, the contrary was held in Lewis v. Railroad, 59 Mo. 495, and the doctrine of that case has been adhered to by this court, and we are not inclined to depart from what must, therefore, be now accepted as the rule settled on that subject in this state." The case of Condon v. Railroad, 78 Mo. 567, which is cited in the Sullivan case, was a suit by a brakeman to recover damages occasioned by reason of a defective hand-hold on the top of a box car. The court in that case observed: "The third refused (instruction) declares that car inspectors at the intermediate stations were fellow-servants of plaintiff, and that if the proximate cause of plaintiff's injury was attributable to any want of care or caution on their part, defendant was not liable. Car inspectors are not co-employes with trainmen. Long v. Railroad, 65 Mo. 225."

These observations must be considered in the light of the facts then before the court, and of the cases which are there cited. When this is done it will be seen that the Hall and Condon cases turn upon the principle of law that it is the duty of the railroad company to furnish a safe road and cars. This duty requires the company to use due care in keeping the road and cars in repair. If this duty is devolved upon servants,...