Schroeder v. Chicago & A. Ry. Co.

• Decision Date: 08 February 1892
• Citation: 108 Mo. 322,18 S.W. 1094
• Court: Missouri Supreme Court
• Parties: SCHROEDER v. CHICAGO & A. RY. CO.

18 S.W. 1094

108 Mo. 322

SCHROEDER v. CHICAGO & A. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 8, 1892.

MASTER AND SERVANT — NEGLIGENCE — FELLOW-SERVANTS — ASSUMPTION OF RISK — INSTRUCTIONS — EVIDENCE.

1. When plaintiff submits evidence to sustain his burden of proof, the defendant, though offering nothing to contradict it, is entitled to have the jury determine its credibility.

2. It is part of the personal duty of the master to give direction to the work he undertakes, and to prescribe a system for conducting it. This may be done by rules, when necessary, or by the personal guidance of managers and foremen. In so doing the master must use ordinary care for the safety of his employes.

3. A foreman is not a fellow-servant of a man under his orders, in respect to his performance of the master's duty of directing the work in his charge.

4. A servant assumes all ordinary risks of his employment, but not unknown perils arising from negligent direction of the work. The latter are not usual risks of the service.

5. An employe is bound to use ordinary care to avoid dangers that arise, whether usually incident to the service or not.

6. Persons are justified in assuming greater risks to protect human life than would be sanctioned in other circumstances.

7. Obedience to an order involving personal danger cannot be declared negligent in law unless the danger was so glaring that no prudent person in like situation would have obeyed.

8. It is not error to refuse requests to instruct, where the findings for which they call are necessarily embraced in the verdict upon the instructions given.

9. Plaintiff was one of a section gang under a foreman. On the way to work, while riding on a hand-car, they saw a passenger train approaching on the same track. The gang, under the lead of the foreman, attempted to get the car off, but when the engine was some 60 feet distant the foreman ordered the men to"get out of the way." Plaintiff had not reasonable time to escape, and was struck by the hand-car when it was thrown off by the engine. Held, that the questions of negligent direction by the foreman and of contributory negligence of plaintiff were for the jury.

(Syllabus by the Judge.)

Appeal from circuit court, Saline county; RICHARD FIELD, Judge.

Action by Louis Schroeder against the Chicago & Alton Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

Saml. Boyd, for appellant. Davis & Wingfield and Alf. F. Rector, for respondent.

BARCLAY, J.

Plaintiff sustained the damage which forms the subject of this action near the city of Marshall, Mo., while in defendant's employ as a section hand. His evidence tended to show that he was working under Mr. Klein, foreman of the section on which the accident took place. The men began work, usually, at 7 A. M. On the day of the injury, August 7, 1888, the westward bound passenger trains of defendant's line, due at Marshall at 5 and 6 A. M., respectively, had not arrived when the time came for the section gang to go to work. Klein learned at the telegraph office that these trains were overdue. He ordered a hand-car put on the track, and started eastward with his crew of five men, including plaintiff. The hand-car carried necessary tools, as well as the foreman and all the men, excepting one, who went ahead some distance to give warning on the approach of a train. About a mile east of Marshall, they met the first train. The men lifted the handcar from the track, and the train passed without mishap. The car was then replaced, and continued its course eastward, but this time no one was sent forward; all the men rode on the car. After proceeding thus two miles the second train was seen approaching, around a curve, emerging from some timber, at the rate of 35 or 40 miles an hour. When first observed, it was about 900 or 1,000 feet away. The foreman immediately stopped the hand-car, jumped off as quick as he could, and began to lift it from the track. All the men did likewise. They did not get the car off; and, when Klein saw the engine was about 60 feet from them, he called to the men to "let the car go and get out of the way." They tried to do so. All escaped save plaintiff, who had the misfortune to stumble and fall near the track, and on rising to his feet was struck by the hand-car as the latter was thrown to one side by the passing locomotive. Both his legs were broken, and he suffered severely in consequence. When the foreman and men had hold, before the catastrophe, three stood in front and three at the end of the car. Plaintiff was in the middle of the latter group, on the side furthest from the coming train, and facing it. Plaintiff had had several months' previous experience as a track hand, but had been employed by Kein as one of this gang only the day before the accident. The jury returned a verdict for plaintiff for $4,000; and, after the usual preliminaries, defendant appealed.

The defendant offered no testimony, so that the plaintiff's was uncontradicted, but from this it is not to be assumed that that evidence is to be accepted as true. The allegations of plaintiff's cause of action were denied by the answer. Thus was imposed on plaintiff the burden of proving the facts necessary to a verdict in his favor. Upon his submission of proofs to support the issues on his part the defendant was entitled to have the triors of fact determine its credibility, though defendant may have tendered nothing to contradict it. Should a verdict be returned against the evidence given in such circumstances, it might furnish a matter for the corrective action of the trial court in a proper case, but not for the exercise of the revisory power of an appellate court, reviewing questions of law only. It is not now necessary to give the reasons for these positions. They inhere in a proper understanding of the system of trial by jury as established by our constitution and laws, and have been already clearly stated by Commissioner PHILIPS in Gregory v. Chambers, (1883,) 78 Mo. 298, where some of the earlier cases to the same effect are cited. We are aware that intimations to the contrary have been thrown out in several decisions, but we do not regard those intimations as furnishing a safe guide for the action of appellate courts in Missouri. Instances may and often do arise in which the conduct of the case at the trial involves a concession or admission of material facts, previously in issue. In that event, no court can properly deprive the benefited party of the full effect of such admission or concession. Our remarks do not apply to such instances, or, indeed, to any other facts than those now before us. Here we shall treat the undisputed testimony for the plaintiff, in determining its sufficiency to support the verdict, just as it would be treated if it had been met by evidence of the defendant, as it was met by denials in the answer; and so the trial court viewed this phase of the case. The cause was submitted to the jury on plaintiff's theory of defendant's negligence in the management of the hand-car and crew by the section foreman; and on the other side the question of plaintiff's exercise of ordinary care, in the circumstances, was presented. Both of these issues were finally given to the jury as questions of fact; but in the first instance the court was called upon to meet them by an instruction asked by defendant, in the nature of a demurrer to the evidence. That instruction was refused, and error is now assigned upon that ruling.

1. From the outline already given of plaintiff's case, it will be seen that he was a laborer under the orders of the foreman, Klein, and at the time of the accident subject to the sole authority of the latter. It is a part of the personal duty of the master to give direction to the work he undertakes, and to prescribe the system or method of conducting it. In so doing, he must use ordinary care for the safety of those engaged in his service. Accordingly, it has been held that the omission to adopt and to enforce rules necessary for the reasonably safe management of a business as complex and as hazardous to life and limb as that herein view may sometimes form the basis for a finding of negligence on the part of the master. Reagan v. Railway Co., (1887,) 93 Mo. 348, 6 S. W. Rep. 371; Abel v. Canal Co., (1891, N. Y. App.) 28 N. E. Rep. 663; Whittaker v. Canal Co., (1891,) 126 N. Y. 544, 27 N. E. Rep. 1042. Such holdings rest upon the same principle that supports the rule of liability for defects in the plant or appliances. As has lately been tersely said in a case which received very thorough consideration, "a master is no less responsible to his workmen for personal injuries caused by a defective system of using machinery than for injuries caused by a defect in the machinery itself." Lord WATSON in Smith v. Baker, (1891,) L. R. 16 App. Cas. 353. Rules, however, are but one means of giving direction to the master's work. Its guidance, as to details, is often necessarily intrusted to managers, foremen, and others. By whatsoever name such a superior employe may be called, his relation to the subordinates acting under his orders is not that of a fellow-workman in respect to his performance of the master's function of directing them and the work in his charge. In the case before us, defendant placed plaintiff under the control of the section foreman, Klein, as to the mode and manner of performing the labor he had engaged to do. Any want of ordinary care on the part of the foreman in commanding that labor involved a breach of the master's duty mentioned, and cannot justly be regarded as the negligence of a fellow-servant. It is not thought needful to discuss this proposition further at this time, in view of the attention it has received here of late. Stephens v. Railroad Co., (1888,) 96 Mo. 207, 9 S. W. Rep. 589; Dayharsh v. Railroad Co., (1890,) 103 Mo. 570, 15 S. W. Rep. 554.

Plaintiff assuredly assumed...