Dayharsh v. Hannibal & St. J. R. Co.

• Decision Date: 09 March 1891
• Citation: 103 Mo. 570,15 S.W. 554
• Court: Missouri Supreme Court
• Parties: DAYHARSH v. HANNIBAL & ST. J. R. CO.

15 S.W. 554

103 Mo. 570

DAYHARSH v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

INJURY TO EMPLOYE — NEGLIGENCE OF FOREMAN.

1. Where one employe is in charge of a certain part of defendant's railway business, as, in this case, of a round-house, the engines there, and the men necessary to care for them, he is not to be regarded as a fellow-servant of a laborer working at the time under his orders, in respect of acts done by the former in pursuance of his authority over the branch of business under his charge.

2. It is part of the master's duty to use ordinary care to furnish the employe a place to work reasonably as safe as the nature of the employment permits, and not to expose him to any unknown risks, not ordinarily incident to the service.

3. In an action for personal injuries caused by negligence it is error to admit evidence of the number and ages of plaintiff's children.

4. Error is presumptively prejudicial. One claiming it to be harmless must affirmatively show it to be so.

(Syllabus by Judge.)

Appeal from circuit court, Linn county; G. D. BURGESS, Judge.

The case proceeds for personal injuries, and the defenses are a general denial and contributory negligence. Plaintiff was injured while in defendant's employ at its round-house, Brookfield, Mo. He was a laborer under the direction of Mr. Stephens, who was called the night "hostler." The meaning of this term in this case will be readily comprehended by regarding the locomotive engines as iron horses, and their custody, care, cleaning, and management in and about the round-house as devolving on Mr. Stephens, the "hostler," and the men under his orders for that purpose, from 7 P. M. of one day to 7 o'clock of the following morning. Plaintiff's evidence tended to prove that on the night of the accident he began work at 7 o'clock, as usual, coaling and watering the engines till near 11 P. M., after which Mr. Stephens told him to take the scoop, and get down in the pit and shovel out the cinders. The pit (or trench) was under the tracks running into the round-house. It received the ashes and cinders from locomotives, and, when filled nearly to the level of the rails, was emptied by shoveling the ashes, etc., out to one side. In accordance with the order, plaintiff got into the pit, placed his lantern on the rail near him, and began to throw out the ashes with a shovel. It usually took from 20 to 30 minutes to clean out the ash-pit. An engine stood close by (defendant's witnesses say some six or seven yards away) on the same track, and Mr. Stephens was upon the engine. When plaintiff had thus been working for a time stated by him as "three to five minutes," (and by defendant's witness, Mr. Stephens, as "from five to ten minutes,") this engine started backwards towards plaintiff. The tender struck him, and severely crushed his ankle as he was endeavoring to get out of its way. He says he heard no bell or other signal given of its approach; that he had only taken out "three or four scoops," and was reaching for another shovelful, when he was hit; that he cried out, and "tried to dodge it," but failed; and that the tender and part of the engine ran over him. Plaintiff consequently lost his leg below the knee. The testimony as to whether or not a signal was given by ringing the bell (as the engine moved towards plaintiff) was conflicting. Some of defendant's witnesses said it was. The plaintiff said he heard no signal. One of defendant's employes declared that there were other bells ringing on other engines near by, and that he could not say whether or not the engine bell in question was rung. In the progress of plaintiff's examination he was allowed (against defendant's objection and exception) to state the number of his children and their ages. The only instruction given by the court on the measure of damages was as follows: "If the jury find for the plaintiff, they should, in estimating his damages, take into consideration the age and situation in life of the plaintiff, his bodily suffering, resulting from the injury received, and loss sustained by reason of the loss of his leg, and the extent to which he is disabled from making a support for himself and family by reason of the injury received, not exceeding ten thousand dollars." The jury found for plaintiff for $5,008.33, and in due course defendant filed the usual motions and bill of exceptions, to preserve for review the points hereafter discussed. Other facts that may be material will be mentioned in the opinion of the court.

Huston & Parrish, for appellant. A. W. Myers and Stauber & Crandall, for respondent.

BARCLAY, J., (after stating the facts as above.)

Plaintiff was in defendant's service as a laborer under Mr. Stephens, who as "hostler" had charge and care of defendant's engines in the round-house. As such he also had control and direction of the men necessary to assist him in that work. It is conceded that he had superintending oversight of plaintiff, but the claim is made that he was nevertheless a fellow-servant of the latter in respect of the movement of the engine which did the damage, and that, consequently, his negligence could not properly furnish a basis for a recovery herein. This is the vital question in the case. A person employed to perform any of the master's duties towards his servant is, while that relation continues, and in respect to such duties, no fellow-servant of the latter. The duties which the master owes the servant may, in many particulars, be delegated to subordinates, and the wide extent of modern business enterprises often necessitates so doing, but that delegation of authority does not relieve the master from a proper...