Sherrin v. St. Joseph & St. L.R. Co.
| Decision Date | 24 February 1891 |
| Parties | Sherrin et al., Appellants, v. The St. Joseph & St. Louis Railway Company |
| Court | Missouri Supreme Court |
Sherrin et al., Appellants,
v.
The St. Joseph & St. Louis Railway Company
Supreme Court of Missouri, Second Division
February 24, 1891
Appeal from Clinton Circuit Court. -- Hon. J. M. Sandusky, Judge.
Affirmed.
Sherry & Hughes for appellants.
The deceased was not a fellow servant with Fort (who was section boss) and the men under his direction, whose negligence is claimed to have been the proximate cause of injury. Condon v. Railroad, 78 Mo. 573; Long v. Railroad, 65 Mo. 225; Gibson v. Railroad, 46 Mo. 163; Lewis v. Railroad, 59 Mo. 495; Snow v. Railroad, 8 Allen, 441; Ford v. Railroad, 110 Mass. 240; Flick v. Railroad, 53 N.Y. 449; Hall v. Railroad, 64 Mo. 298; Gormly v. Iron Works, 61 Mo. 492; McDermott v. Railroad, 87 Mo. 285; Moore v. Railroad, 85 Mo. 588; Tabler v. Railroad, 93 Mo. 79; Stephens v. Railroad, 96 Mo. 207; Sullivan v. Railroad, 97 Mo. 113; Ross v. Railroad, 112 U.S. 377; Garrahy v. Railroad, 25 F. 258, and note; Copper v. Railroad, 2 N.E. 749, and note; Ragsdale v. Railroad, 42 F. 383.
Gardiner Lathrop for respondent.
Deceased was a fellow servant of Fort, the local section boss and the men in his charge. Wood on Railway Law, sec. 388; Moore v. Railroad, 85 Mo. 588; Hoke v. Railroad, 88 Mo. 360; Murray v. Railroad, 98 Mo. 573; O'Brien v. Railroad, 138 Mass. 387; Easton v. Railroad, 109 U.S. 478. The case of Sullivan v. Railroad, 97 Mo. 114, is inapplicable to the case at bar. Murray v. Railroad, supra.
OPINION
[103 Mo. 379] Gantt, P. J.
On the ninth day of April, 1888, the plaintiffs filed in the Clinton county circuit court the following petition:
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"Maggie Sherrin and Grace Sherrin, |
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by their next friend, William |
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Honn, plaintiffs, |
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In the circuit |
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v. |
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court of Clinton |
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"The St. Joseph & St. Louis Rail- |
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county, Missouri. |
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road Company, defendant. |
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"Plaintiffs, for their second amended petition, state that the said Maggie Sherrin and Grace Sherrin, are minor children and sole heirs at law of John Sherrin, deceased, aged respectively six and three years. That the said John Sherrin died, leaving no wife. That the said William Honn is their duly appointed and qualified next friend.
"That the defendant is a corporation duly organized under and by virtue of the laws of the state of Missouri, and as such, at and before the time hereinafter mentioned, owned and operated a railroad from the city of St. Joseph in Buchanan county, to Richmond and Lexington Junction, in Ray county, Missouri, and in and through Clinton county, Missouri.
"That John Sherrin, the father of plaintiffs, was, at the time hereinafter mentioned, employed by defendant [103 Mo. 380] in the capacity of foreman of what is called an extra gang of men, by virtue of which employment he had in his charge and under his control a force of ten men, who were subject to his orders; that as such foreman he was subject only to the orders of defendant's roadmaster, and was subject to be sent to any part of defendant's road by such roadmaster to do extra work thereon. That is, such work as did not properly fall within the duty of any local men, or was not assigned to other employes of defendant, and in the discharge of said duties the said Sherrin was furnished by defendant with a handcar for his use in and about his duties aforesaid, and for the purpose of transporting the men in his charge from place to place, and to and from their labor, along the line of defendant's railroad.
"That on the day of , 1887, the said John Sherrin, in the discharge...
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